EXHIBIT 10.12
EMPLOYMENT AGREEMENT OF XXXXX X. BRAIN
EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of January 1, 2000 by
ENTERTAINMENT PROPERTIES TRUST, a Maryland real estate investment trust (the
"Company") and XXXXX X. BRAIN ("Employee"). In consideration of the mutual
covenants contained herein, the parties agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the following meanings.
"1997 AGREEMENT" shall mean Employee's Employment Agreement dated November
21, 1997.
"1997 NOTE" shall mean the share purchase note given by Employee under the
1997 Agreement with a current principal balance of $908,145.
"ANNUAL INCENTIVE PROGRAM" shall mean the Annual Incentive Program of the
Company, as amended from time to time, or any successor incentive program
adopted by the Board or the Compensation Committee.
"BOARD" shall mean the Board of Trustees of the Company.
"CAUSE" shall mean and be limited to (a) Employee's willful and continued
failure or refusal to perform his duties with the Company (other than as a
result of his Disability or incapacity due to mental or physical illness) which
is not remedied in the reasonable good faith determination of the Board or
Chairman within 30 days after Employee's receipt of written notice specifying
the nature of such failure or refusal, or (b) the willful engagement by Employee
in misconduct which is materially and demonstrably injurious to the Company. For
purposes of this Agreement, no act or failure to act shall be considered
"willful" unless done or omitted in bad faith and without reasonable belief that
the act or omission was in the best interests of the Company. A failure or
refusal to perform duties materially and adversely inconsistent with Employee's
position, as contemplated in paragraph (a) of the definition of "Good Reason,"
shall not be considered willful or in bad faith.
"CHAIRMAN" shall mean the Chairman of the Board of Trustees of the Company.
"CHANGE IN CONTROL" shall mean the occurrence of any of the following
events:
(a) Incumbent Trustees cease for any reason to constitute at least a
majority of the Board.
(b) Any "person" (as defined in Section 3(a)(9) of the Exchange Act
and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) or
"group" (within the contemplation of Section 13(d)(3) of the Exchange Act
and Rule 13d-5 thereunder) is or becomes a "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act) or controls the voting power,
directly or indirectly, of shares of the Company representing 25% or more
of the Company Voting Securities, other
than (i) an acquisition of Company Voting Securities by an underwriter
pursuant to an offering of shares by the Company, (ii) a Non-Qualifying
Transaction, or (iii) an acquisition of Company Voting Securities directly
from the Company which is approved by a majority of the Incumbent Trustees.
For purposes of this definition:
(A) "Company Voting Securities" shall mean the outstanding shares
of the Company eligible to vote in the election of trustees of the
Company.
(B) "Company 25% Shareholder" shall mean any "person" or "group"
which beneficially owns or has voting control of 25% or more of the
Company Voting Securities.
(C) "Business Combination" shall mean a merger, consolidation,
acquisition, sale of all or substantially all of the Company's assets
or properties, statutory share exchange or similar transaction
involving the Company or any of its subsidiaries that requires the
approval of the Company's shareholders, whether for the transaction
itself or the issuance or exchange of securities in the transaction.
(D) "Incumbent Trustees" shall mean (1) the trustees of the
Company as of the date of this Agreement or (2) any trustee elected
subsequent to the date of this Agreement whose election or nomination
was approved by a vote of at least two-thirds of the Incumbent
Trustees then on the Board (either by specific vote or approval of a
proxy statement of the Company in which such person is named as a
nominee for trustee).
(E) "Parent Corporation" shall mean the ultimate parent entity
that directly or indirectly has beneficial ownership or voting control
of a majority of the outstanding voting securities eligible to elect
directors of a Surviving Corporation.
(F) "Surviving Corporation" shall mean the entity resulting from
a Business Combination.
(G) "Non-Qualifying Transaction" shall mean a Business
Combination in which all of the following criteria are met: (1) more
than 50% of the total voting power of the Surviving Corporation or, if
applicable, the Parent Corporation, is represented by Company Voting
Securities that were outstanding immediately prior to the Business
Combination (or, if applicable, is represented by shares into which
the Company Voting Securities were converted pursuant to the Business
Combination and held in substantially the same proportion as the
Company Voting Securities were held immediately prior to the Business
Combination, (2) no "person" or "group" (other than a Company 25%
Shareholder or any Employee Benefit Plan (or related trust) sponsored
or
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maintained by the Surviving Corporation or the Parent Corporation)
would become the beneficial owner, directly or indirectly, of 25% or
more of the total voting power of the outstanding voting securities
eligible to elect directors of the Parent Corporation (or, if there is
no Parent Corporation, the Surviving Corporation) and no Company 25%
Shareholder would increase its percentage of such total voting power
as a result of the transaction, and (3) at least a majority of the
members of the board of directors or similar governing body of the
Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) following the consummation of the Business
Combination were Incumbent Trustees at the time of the Board's
approval of the Business Combination.
(c) The shareholders of the Company approve a Business Combination,
other than a Non-Qualifying Transaction.
(d) The shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company.
(e) The acquisition of direct or indirect Control of the Company by
any "person" or "group."
(f) Any transaction or series of transactions which results in the
Company being "closely held" within the meaning of the REIT provisions of
the Code, after any applicable grace period, and with respect to which the
Board has either waived or failed to enforce the "Excess Share" provisions
of the Company's Amended and Restated Declaration of Trust.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because any "person" or "group" acquires beneficial ownership or
voting control of more than 25% of the Company Voting Securities as a result of
any acquisition of Company Voting Securities by the Company, but if after that
acquisition by the Company the "person" or "group" becomes the beneficial owner
or obtains voting control of any additional Company Voting Securities, a Change
in Control shall be deemed to occur unless otherwise exempted as set forth
above.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COMPENSATION COMMITTEE" shall mean the Compensation Committee appointed by
the Board.
"CONTROL" shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of the Company,
whether through the ownership of Company Voting Securities, by contract, or
otherwise.
"DISABILITY" shall mean (a) the adjudication of incompetence of Employee or
(b) the failure of Employee to perform his duties with the Company on a
full-time basis for 90 consecutive days as a result of incapacity due to mental
or physical illness which is determined
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to be permanent by a physician selected by the Company or its insurers and
acceptable to Employee or his legal representative, which acceptance shall not
be unreasonably withheld.
"EMPLOYEE BENEFIT PLANS" shall mean any and all 401(k) plans, profit
sharing plans, retirement plans, savings plans, investment plans, individual and
family health and hospitalization insurance and/or self-insurance plans, medical
reimbursement plans, prescription drug plans, dental plans, group life
insurance, disability insurance, salary continuation plans, accidental death and
travel accident insurance plans, fringe benefits and all other benefit plans,
programs and policies of the Company adopted for peer management employees of
the Company or agreed to by Employee and the Company during the Employment
Period.
"EMPLOYMENT PERIOD" shall mean the period from the date of this Agreement
until the third anniversary of the date hereof, as extended automatically by
adding one additional 12 month period on the first anniversary of the date
hereof and on each anniversary thereafter, creating a rolling three year
Employment Period.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"GOOD REASON" shall mean any of the following which is not remedied in the
reasonable good faith determination of Employee within 30 days after the
Company's receipt of written notice specifying the event claimed to constitute
Good Reason:
(a) The assignment to Employee of duties materially and adversely
inconsistent with Employee's position as described in Section 2 or other
position to which Employee may have been promoted prior to that time, or
any material reduction in Employee's office, status, position, title(s) or
responsibilities which is not agreed to by Employee.
(b) Any material reduction in Employee's base compensation or
eligibility under the Annual Incentive Plan or Employee Benefit Plans which
is not agreed to by Employee.
(c) A material breach of this Agreement by the Company, its successors
or assigns, including any failure to pay Employee on a timely basis any
amounts to which he is entitled under this Agreement.
(d) Any requirement that Employee be based at any office outside of a
35 mile radius of the current offices of the Company.
"GROSS-UP PAYMENT" shall mean a payment to Employee in an amount equal to
all federal, state and/or local income, excise or other taxes imposed on
Employee as a result of the forgiveness of any portion of the Share Purchase
Note or any continuation of salary, bonus and/or benefits under Section 6. For
purposes of determining the amount of the Gross-Up Payment, Employee will be
deemed to pay federal income taxes at the highest marginal rate in the Year in
which the Gross-Up Payment is made and state and local income taxes at the
highest marginal rates in the state and locality of his residence in that Year
net, in the case of federal income taxes, of any reduction in federal income
taxes which could be obtained from payment of the state and local taxes.
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"HOSTILE CHANGE IN CONTROL" shall mean "a Change in Control pursuant to a
tender offer, exchange offer or similar transaction at a price, on terms or by a
"person" or "group" which is determined by at least a majority of the Incumbent
Trustees, after receiving advice from one or more nationally recognized
investment banking firms selected by the Incumbent Trustees, to not be (a) fair
to the Company's shareholders (taking into account all factors the Board deems
relevant including, without limitation, prices that could reasonably be achieved
if the Company or its assets were sold on an orderly basis designed to realize
maximum value) or (b) otherwise in the best interest of the Company and its
shareholders (other than the "person" or "group" on whose behalf the offer is
being made, its affiliates or associates) taking into account all factors the
Incumbent Trustees deem relevant.
"NOTICE OF TERMINATION" shall mean a written instrument delivered by
Employee or the Company, as the case may be, which (a) gives notice of the
termination of this Agreement and Employee's employment hereunder, (b) indicates
the provision of this Agreement under which the termination is made, (c) unless
the termination is pursuant to Section 5(d), (f), (g) or (h), describes in
reasonable detail the facts and circumstances claimed to provide a basis for
termination and (d) specifies the Termination Date (which shall be not more than
30 days after the date of the Notice). The failure by Employee or the Company to
describe in a Notice of Termination any fact or circumstance which contributes
to a showing of Disability, Good Reason or Cause (as applicable) shall not waive
any right to assert such fact or circumstance in enforcing Employee's or the
Company's rights hereunder.
"PROGRAM SHARES" shall mean the 40,000 shares of the Company purchased by
Employee with the proceeds of the 1997 Note plus the 40,000 additional shares of
the Company purchased by Employee and financed via the Share Purchase Note. The
Program Shares are without restriction by the Company, except that for a period
of two years after their date of issue, the Program Shares may not be sold,
transferred or otherwise disposed of by Employee, voluntarily or involuntarily,
without the written consent of the Company, except (a) upon death, Disability,
retirement at or after age 65, termination by Employee for Good Reason or
termination by the Company without Cause, (b) transfers to other officers of the
Company or (c) upon a Change in Control. Any sale of the Program Shares must
comply with the Securities Act of 1933 and the rules thereunder. The Program
Shares will bear a legend to such effect.
"RESIGNATION" shall mean Employee's resignation from the Company other than
pursuant to Section 5(e), (g) or (h). "Resign" shall have the correlative
meaning.
"SHARE PURCHASE NOTE" shall mean the 10 year recourse promissory note in
the original principal amount of $1,470,645 given by Employee to finance the
acquisition of 40,000 Program Shares plus the remaining principal balance under
the 1997 Note.
"TERMINATION DATE" shall mean: (a) if Employee is terminated pursuant to
Section 5(b) or (c) or terminates pursuant to Section 5(e) or (h), the date of
receipt of the Notice of Termination or any later date specified in the Notice,
(b) if Employee is terminated by reason of death, the date of his death, or (c)
if Employee is terminated pursuant to Section 5(d) or Resigns, 30 days after the
date of receipt of the Notice of Termination.
"YEAR" shall mean a calendar year.
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2. DUTIES. The Company employs Employee as its President and Chief
Executive Officer. During the Employment Period (a) Employee shall perform such
duties commensurate with his position as President and CEO as the Board or
Chairman shall assign from time to time, and (b) Employee shall devote his full
time and attention to the business of the Company and shall not engage in any
other business activity for gain or profit, other than personal investments or
service on corporate, civic or charitable boards or committees, so long as such
activities do not significantly interfere with the performance of his
responsibilities under this Agreement. Employee accepts his employment and
agrees to faithfully observe and enforce the policies and decisions of the
Company in effect from time to time.
3. TERM. This Agreement and Employee's employment shall remain in effect
during the Employment Period, as extended, unless sooner terminated in
accordance with Section 5.
4. COMPENSATION.
(a) BASE SALARY. Employee shall receive an annual base salary of
$325,000, payable in regular increments in accordance with the Company's
standard payroll procedures (but not less frequently than monthly) less
applicable withholdings, and subject to such increases as awarded in the
discretion of the Compensation Committee from time to time.
(b) BONUS. Employee shall be eligible for an annual performance bonus
in accordance with the Annual Incentive Program. The Compensation Committee
shall establish the bonus computation methodology and performance criteria
for each Year and shall have sole authority to administer the Annual
Incentive Program, to establish performance goals, to certify to their
achievement and to establish the amount of the annual bonus.
(c) EMPLOYEE BENEFIT PLANS. Employee shall be eligible to participate
in all Employee Benefit Plans made available to other peer management
employees of the Company or otherwise agreed to by Employee and the Company
during the Employment Period.
(d) VACATION. Employee shall be entitled to at least four weeks paid
vacation during each Year of service, or such greater amount as afforded
other peer management employees of the Company or otherwise agreed by
Employee and the Company (prorated for any partial Year).
(e) EXPENSE REIMBURSEMENTS. The Company shall reimburse Employee for
all business travel and other out-of-pocket expenses reasonably incurred by
Employee in the performance of his services under this Agreement. All
reimbursable expenses shall be appropriately documented in reasonable
detail by Employee upon submission of any request for reimbursement, in a
format and manner consistent with the Company's expense reporting policies
applicable to other peer management employees of the Company.
(f) ADJUSTMENTS TO COMPENSATION. Employee's base salary and other cash
compensation shall be subject to withholding and other applicable taxes. If
Employee is employed by the Company for less than 12 months in any Year,
unless otherwise provided in Section 6 or in the applicable plan or
arrangement, his compensation and benefits shall be prorated in accordance
with the number of days in the Year during which he is employed.
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5. TERMINATION. This Agreement and Employee's employment hereunder shall be
terminated upon the earliest of:
(a) DEATH. Employee's employment shall automatically terminate upon
his death.
(b) DISABILITY. The Company will make efforts to reasonably
accommodate Employee as required by applicable federal and state laws.
However, in the event of Employee's Disability, the Board may, after giving
30 days' written notice to Employee, terminate Employee by giving Notice of
Termination if he is unable because of his Disability to resume his
full-time duties within such 30-day period.
(c) CAUSE. The Board or Chairman may terminate Employee's employment
for Cause by giving Notice of Termination to Employee.
(d) WITHOUT CAUSE. The Board, or the Chairman with the approval of the
Board, may terminate Employee's employment without Cause by giving 30 days'
Notice of Termination to Employee.
(e) GOOD REASON. Employee may terminate his employment for Good Reason
by giving Notice of Termination to the Company.
(f) RESIGNATION. Employee may Resign his employment by giving 30 days'
Notice of Termination to the Company.
(g) RETIREMENT. Employee may retire at or after age 65.
(h) CHANGE IN CONTROL. Employee may terminate his employment by giving
Notice of Termination upon a Change in Control.
6. COMPENSATION ON TERMINATION. Upon termination of Employee's employment
for any reason provided in Section 5, Employee (or his estate) shall be entitled
to all compensation earned and all benefits and reimbursements vested or accrued
through the Termination Date. In addition:
(a) DEATH. If Employee's employment is terminated pursuant to Section
5(a), Employee's estate shall receive from the Company, in a lump-sum
payment due within 30 days after the Termination Date, an amount equal to
the sum of (i) Employee's base salary at the rate in effect on the
Termination Date for the remainder of the Employment Period, plus (ii) the
incentive bonus paid or payable to Employee for the most recently completed
Year prior to Employee's death times the number of Years remaining in the
Employment Period (for purposes of (i) and (ii) any partial Year during the
remainder of the Employment Period shall be treated as an entire Year). In
addition, notwithstanding anything to the contrary in any share option plan
or agreement, any share options that were exercisable by Employee on the
date of his death may be exercised by his heirs or devisees until the
earlier of 180 days after the date of his death or ten years after the
grant date of the options.
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(b) DISABILITY. If Employee's employment is terminated pursuant to
Section 5(b), Employee or his personal representative shall receive from
the Company, in a lump-sum payment due within 30 days after the Termination
Date, an amount equal to the sum of (i) Employee's base salary at the rate
in effect on the Termination Date for the remainder of the Employment
Period, plus (ii) the incentive bonus paid or payable to Employee for the
most recently completed Year prior to the Termination Date times the number
of Years remaining in the Employment Period (for purposes of (i) and (ii)
any partial Year during the remainder of the Employment Period shall be
treated as an entire Year), minus (iii) the disability benefits payable to
Employee under disability plans maintained by Company.
(c) BY THE COMPANY FOR CAUSE; RESIGNATION; RETIREMENT. If Employee is
terminated pursuant to Section 5(c) or Employee Resigns or retires at or
after age 65, Employee shall have no right to any severance compensation or
benefits, except as required by law.
(d) BY THE COMPANY WITHOUT CAUSE; BY EMPLOYEE FOR GOOD REASON OR UPON
A CHANGE IN CONTROL. If Employee is terminated pursuant to Section 5(d) or
terminates pursuant to Section 5(e) or (h), Employee shall receive from the
Company (or its successor, if applicable), in a lump-sum payment due within
30 days after the Termination Date, an amount equal to the sum of (i)
Employee's base salary at the rate in effect immediately prior to the
Termination Date times the number of Years remaining in the Employment
Period, plus (ii) the incentive bonus paid or payable to Employee for the
Year immediately preceding the Year in which the Termination Date occurs
times the number of Years remaining in the Employment Period (for purposes
of (i) and (ii), any partial Year during the remainder of the Employment
Period shall be treated as an entire Year) plus (iii) a Gross-Up Payment in
the amount of any excise tax incurred by Employee as a result of such
compensation. In addition, notwithstanding anything to the contrary in any
share option plan or agreement, any share options held by Employee on the
Termination Date shall become immediately exercisable and may be exercised
by Employee until the earlier of 180 days after the Termination Date or 10
years after the grant date of the options.
(e) NOTE FORGIVENESS. If Employee is terminated pursuant to Section
5(a), (b) or (d) or terminates pursuant to Section 5(e), (g) or (h), the
Company shall (i) forgive that portion of the principal balance of the
Share Purchase Note equal to (A) the outstanding balance of the Share
Purchase Note on the Termination Date less (B) an amount equal to the
average closing price for the Company's shares during the 20 trading days
prior to the Termination Date times the number of Program Shares held by
Employee on the Termination Date, multiplied by (C) a fraction, the
numerator of which is the number of Program Shares held by Employee on the
Termination Date and the denominator is the number of original issue
Program Shares purchased with the proceeds of the Share Purchase Note and
1997 Note, and (ii) pay a Gross-Up Payment to Employee in consideration of
such Note forgiveness. If Employee is terminated pursuant to a Hostile
Change in Control, the Company shall forgive the entire principal balance
of the Share Purchase Note and pay a Gross-Up Payment to Employee in
consideration of such Note forgiveness.
Unless surrendered to the Company for cancellation, all Program Shares
purchased with the proceeds of the Share Purchase Note and/or the 1997 Note
which are held by Employee as of the date of any Share Purchase Note forgiveness
(other than upon a Hostile Change in Control)
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and which have an aggregate value (as determined under Section 6(e)(B)) equal to
or less than the amount of the principal balance of the Share Purchase Note
shall be cancelled on the books of the Company and the value of those cancelled
Shares shall be applied toward the principal balance of the Share Purchase Note,
with any remaining Shares whose value exceeds such principal balance to be
retained by Employee. Employee designates the Secretary or any Assistant
Secretary of the Company as his attorney-in-fact to effect such cancellation,
which power is coupled with an interest and shall survive the death, Disability
or incompetence of Employee. No Program Shares shall be cancelled in connection
with a Share Purchase Note forgiveness upon a Hostile Change in Control.
Notwithstanding the foregoing, the Compensation Committee shall have
discretion to permit Employee or his estate to retain all Program Shares.
All other rights and obligations of the Company and Employee under this
Agreement (other than Sections 8, 9 and 10, which shall survive termination)
shall cease as of the Termination Date.
7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall limit
Employee's continuing or future participation in any plan, program, policy or
practice provided by the Company and for which Employee may qualify, nor shall
anything herein limit or otherwise affect any rights Employee may have under any
other contract or agreement with the Company. Amounts which are vested benefits
or which Employee is otherwise entitled to receive at or subsequent to a
Termination Date under any plan, policy, practice or program of, or any contract
or agreement with, the Company shall be payable in accordance with the same,
except as explicitly modified in this Agreement.
8. FULL SETTLEMENT; RESOLUTION OF DISPUTES.
(a) The Company's obligation to make the payments provided in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any unilateral right of set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against
Employee or others, but the foregoing shall not limit the right of the
Company to seek such relief in any proceeding. In no event shall Employee
be obligated to seek other employment or take any other action to mitigate
any amounts payable under this Agreement. If Employee is the prevailing
party in any action brought by the Company to contest any liability or
obligation hereunder or in any action by Employee to enforce the provisions
hereof, the Company shall reimburse Employee for the fees and expenses of
his counsel incurred in such action.
(b) If there is a dispute between the Company and Employee (i) if the
Company terminates for Cause, with respect to the existence of Cause (ii)
if Employee terminates with Good Reason, with respect to the existence of
Good Reason, then, upon the entry of a final, nonappealable judgment by a
court of competent jurisdiction declaring that the Company's termination
was not for Cause or that Employee's determination of Good Reason was made
in good faith, as the case may be, the Company shall pay all amounts
provided in the applicable provisions of Section 6, plus any damages to
which Employee is entitled by reason of
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the Company's breach of this Agreement and shall reimburse Employee for the
fees and expenses of his counsel incurred in such proceeding.
(c) Any amount payable under this Section 8 shall bear interest at the
federal rate provided in Section 7872(f)(2)(A) of the Code until fully
paid.
9. INDEMNIFICATION. Nothing in this Agreement shall limit Employee's
indemnification rights under the Company's Declaration of Trust or Bylaws or any
Director's and Officer's insurance coverage. Employee shall not be liable to the
Company or its shareholders for any errors or omissions made in good faith and
in the absence of gross negligence or willful misconduct.
10. CONFIDENTIAL INFORMATION.
(a) Employee shall retain in confidence and shall not disclose to any
party (other than officers, trustees or representatives of the Company as
required for the conduct of the Company's business), nor use for any
purpose (other than in the performance of his duties hereunder) any
confidential or proprietary information of or with respect to the Company,
its business, financial condition or performance, existing or potential
properties, existing or potential transactions, negotiations,
relationships, plans, strategies, projections, existing or potential
tenants or any other information of a confidential or proprietary nature,
whether in written, oral or electronic format and whether disclosed prior
to or after the date of this Agreement ("Confidential Information").
Notwithstanding the foregoing, Confidential Information shall not include
(i) information which is publicly disclosed or otherwise generally
available through no fault of Employee, or (ii) information required to be
disclosed by Employee or the Company under the federal securities laws and
regulations or any subpoena or order of a court or governmental agency. In
no event shall an asserted violation of the provisions of this Section
10(a) constitute a basis for the Company's unilateral deferral or
withholding of any amounts otherwise payable to Employee under this
Agreement, without limitation of the right of the Company to assert any
right of set-off, counterclaim, recoupment, defense or other claim in any
proceeding.
(b) Employee acknowledges that any breach of the covenants in Section
10(a) would cause irreparable injury to the Company which would not be
fully compensable in damages. Accordingly, the Company shall be entitled to
injunctive or specific relief from a court of competent jurisdiction
against any breach or threatened breach by Employee, his agents or persons
acting through him, of the covenants in Section 10(a), without the
necessity of posting bond or proving lack of an adequate remedy at law, and
without limitation of other remedies that may be available to the Company
at law or in equity.
11. SUCCESSORS.
(a) This Agreement is personal to Employee and shall not be assigned
by him without the prior written consent of the Board. The provisions of
Sections 6 and 8 shall inure to the benefit of and be binding on and
enforceable by Employee's heirs and legal representatives.
(b) This Agreement may be assigned by the Company to any successor to
its business or assets and shall inure to the benefit of its successors and
assigns.
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(c) This Agreement shall be binding upon and enforceable against any
successor (whether direct or indirect, by acquisition, merger,
consolidation, Change in Control or otherwise) to the Company or to all or
substantially all of its assets, whether such transaction was approved by
the Incumbent Trustees or otherwise. The Company shall advise any successor
to its business or assets and the entity effecting any Change in Control of
the provisions of this Agreement and their survival of such transaction. As
used in this Agreement, "Company" shall mean Entertainment Properties Trust
and any successor to its business, assets or outstanding securities.
12. EXCESS PARACHUTE PAYMENT. If the Internal Revenue Service asserts that
any portion of any payment made to Employee pursuant to this Agreement
constitutes an "excess parachute payment" and imposes an excise tax thereon, the
Company will indemnify Employee in an amount equal to the excise tax. Such
amount shall be paid to Employee immediately upon a final judicial determination
of, or settlement determining, the liability for the excise tax.
13. REPLACEMENT. This Agreement supersedes and replaces the 1997 Agreement,
with the exception of the restrictions on the 20,000 Program Shares recited in
Section 3(d) of the 1997 Agreement, which shall survive such termination to the
extent applicable.
14. GOVERNING LAW. This Agreement shall be governed by Missouri law,
without reference to conflicts of laws rules.
15. HEADINGS. Section headings are for convenience of reference only and
shall have no effect on the interpretation of this Agreement.
16. ENTIRE AGREEMENT. This constitutes the entire agreement of the parties
with regard to the subject matter hereof and may not be modified or amended
except by written instrument executed by the Company and Employee.
17. NOTICE. Any notice or other communication hereunder shall be in writing
and may be hand delivered or sent by registered or certified mail return receipt
requested, commercial courier or facsimile transmission:
If to Employee: 0000 Xxxxxxx
Xxxxxx Xxxx, XX 00000
FAX: (000) 000-0000
If to the Company: Entertainment Properties Trust
00 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Chairman of the Board
FAX: (000) 000-0000
or to such other address or facsimile number as either party shall have
furnished the other in writing. Notice and communications shall be effective
when actually received by the addressee.
18. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or unenforceability of any other
provision of this Agreement.
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19. WAIVER. A party's failure to insist upon strict compliance with any
provision of this Agreement or the failure to assert any right such party may
have hereunder shall not be deemed a waiver of such provision or any other
provision of this Agreement.
20. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be an original and both of which, taken together, shall constitute a
single instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
above date.
COMPANY
ENTERTAINMENT PROPERTIES TRUST
By
-----------------------------
Xxxxx X. Xxxxx, Chairman
EMPLOYEE
--------------------------------
Xxxxx X. Brain
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