EXHIBIT 10.43
EMPLOYMENT AGREEMENT
BETWEEN
MONARCH PROPERTIES, INC.
AND
▇▇▇▇ ▇. ▇▇▇▇▇
DATED AS OF FEBRUARY 20, 1998
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made effective as of
February 20, 1998 (the "Effective Date"), between MONARCH PROPERTIES, INC., a
Maryland corporation, with principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company") and ▇▇▇▇ ▇. ▇▇▇▇▇, whose address is ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company wishes to employ the Executive and to ensure the
continued services of the Executive for the Term (as hereinafter defined), and
the Executive desires to be employed by the Company for such Term, upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premise and the
mutual agreements herein contained, the parties, intending to be legally bound,
hereby agree as follows:
ARTICLE I
EMPLOYMENT RELATIONSHIP
1.1 Employment. The Company hereby employs the Executive in the
position of President and Chief Executive Officer of the Company, and for all of
its subsidiaries and those subsidiaries over which the Company or its
subsidiaries exert management control, with such responsibilities as may be
assigned to Executive from time to time by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as the Company's
Chairman of the Board. Executive shall report to and be responsible to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ as the Chairman of the Board of the Company as of the Effective Date of
this Agreement for the period hereinafter set forth, and the Executive hereby
accepts such employment.
During the Term, the Executive agrees to devote all such working
time as is reasonably required for the discharge of his duties hereunder and to
perform such services faithfully and to the best of his ability. Notwithstanding
the foregoing, nothing in this Agreement shall preclude the Executive from (a)
engaging in charitable and community affairs, so long as they are consistent
with his duties and responsibilities under this Agreement, (b) managing his
personal investments, and (c) serving on or advising the boards of directors of
other companies.
1.2 Term. Unless sooner terminated pursuant to Article III below, the
term of this Agreement (the "Term") shall commence on the Effective Date, and be
in effect for three (3) years; provided, however, that on each January 1st after
the date of this Agreement (an "Anniversary Date"), the then current term of
this Agreement automatically shall be extended by an additional period of twelve
(12) months, so that, as of each Anniversary Date, this Agreement shall have an
unexpired Term of three (3) years. Notwithstanding the foregoing, either party
hereto may elect not to so extend this Agreement by giving written notice of his
or its election to the other party hereto at least one hundred twenty (120) days
prior to any Anniversary Date. In the event the Company elects not to renew this
Agreement with appropriate notice as provided herein, the Company may buy out
the remaining Term of the Agreement through the payment of severance to the
Executive as provided in Section 3.4.
ARTICLE II
COMPENSATION
2.1 Salary. The Executive shall receive a base salary at an initial
rate of Two Hundred and Twenty Thousand Dollars ($220,000) per year (the
"Salary"), payable in
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substantially equal installments in accordance with the pay policy established
by the Company from time to time, but not less frequently than monthly. On each
Anniversary Date, the Salary shall be increased or decreased (but not below Two
Hundred Twenty Thousand Dollars ($220,000)) by a percentage which is equal to
the percentage increase or decrease, as applicable, in the "Consumer Price Index
for All Urban Consumers" published by the United States Department of Labor's
Bureau of Labor Statistics for the then most recently ended twelve (12) month
period as of the date of such adjustment, and increased by such additional
amounts as may be determined at the discretion of the Board of Directors of the
Company. Once adjusted, such adjusted amount shall constitute Salary for
purposes of this Agreement.
2.2 Bonuses. If the Company's FFO per share equals or exceeds the FFO
goal set by the Board (the "Target"), then no more than ten (10) days following
the date the Company publicly announces its earnings, the Company shall pay the
Executive a discretionary bonus ("Bonus") based on the Executive's performance,
benefit to the Company at large, and the extent to which the Company equals or
exceeds the Target. Such Bonus shall be discretionary except that if the
Company's FFO per share equals or exceeds the Target then the Executive shall
receive a bonus of not less than the Executive's budgeted bonus cap, in the
approved budget for the current fiscal year.
2.3 Executive Benefits and Perquisites. During the Term, the Company
shall provide and/or pay for employee benefits and perquisites that are, in the
aggregate, no less favorable than the employee benefits and perquisites that the
Executive enjoys as an employee of Integrated
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Health Services, Inc. as of the Effective Date, as increased from time to time,
including, without limitation:
(a) comprehensive individual health insurance, including dependent
coverage;
(b) life insurance coverage in the amount of One Million Dollars
($1,000,000) any proceeds of which shall be payable to the Executive's
designated beneficiary or his estate;
(c) four (4) weeks paid vacation annually;
(d) disability insurance coverage in a monthly benefit amount
equal to the sum of 100% of Executive's Salary plus "Bonus Amount" (as
defined in Section 3.4(a)); and
(e) participation in the Company's 1998 Omnibus Securities and
Incentive Plan and, if established, any 401(k) Retirement Savings Plan.
Once increased, the level of benefits and perquisites shall not be
decreased without the Executive's consent.
2.4 Equity-based Compensation. During the Term, the Compensation
Committee or the Stock Option Committee, as applicable, in its complete
discretion, may select the Executive to participate in programs or enter into
agreements which provide for the grant of certain equity-based compensation or
rights to the Executive.
ARTICLE III
TERMINATION AND SEVERANCE
3.1 Termination; Nonrenewal. The Company shall have the right to
terminate the Executive's employment, and the Executive shall have the right to
resign his employment with the Company, at any time during the Term, for any
reason or for no stated reason, upon no less than ninety (90) days prior written
notice (or such shorter notice to the extend provided for
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herein). Upon the Executive's termination without "Cause" (as defined in Section
3.2) or resignation for "Good Reason" (as defined in Section 3.3) or upon the
expiration of the Term following the Company's election not to renew this
Agreement (in accordance with Section 1.3), the Executive shall be entitled to
severance as set forth in Section 3.4. Upon the Executive's termination for
Cause, the Executive shall be entitled to severance as set forth in Section 3.7.
Upon the Executive's resignation without Good Reason, the Executive shall not be
entitled to severance. Upon the expiry of the term hereof, the Executive shall
be entitled to severance as set forth in Section 3.4. If the Executive
employment is terminated because of a Permanent Disability (as defined in
Section 3.5), the Executive shall receive the benefits and payments described in
Section 3.5.
3.2 Termination for Cause.
(a) The Company may terminate this Agreement for Cause following a
determination by the Chairman of the Board that Cause exists. For purposes of
this Agreement, Cause shall mean any or all of the following:
(i) the Executive materially fails to perform his duties
hereunder;
(ii) a material breach by the Executive of his covenants under
Sections 4.1 or 4.2; or
(iii) Executive is convicted of any felony involving moral
turpitude.
(b) Notwithstanding anything in Section 3.2(a) to the contrary, a
termination shall not be for Cause unless (i) the party to whom the Executive
reports notifies the Executive, in writing, of his intention to terminate the
Executive for Cause (which notice shall set forth the
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conduct alleged to constitute Cause) (the "Cause Notice"); and (ii) the
Executive does not cure his conduct within ten (10) days after the receipt of
the Cause Notice.
3.3 Termination for Good Reason. (a) The Executive may terminate this
Agreement for Good Reason, provided he gives the Company prior written notice
that Good Reason exists (the "Good Reason Notice"). For purposes of this
Agreement, Good Reason shall mean one or both of the following:
(i) a material breach of this Agreement by the Company, including,
without limitation, one or more of the following without the
Executive's prior written consent:
(A) a material diminution in the Executive's responsibilities,
title, authority or status,
(B) the failure of the Company to pay the Executive amounts
when due under this Agreement,
(C) the Executive's removal or dismissal from, the position of
President and Chief Executive Officer;
(D) the Executive no longer is assigned responsibilities by
and reports directly to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇; or
(E) a reduction in Salary or a material reduction in benefits
(other than a reduction in Salary permitted by Section 2.1).
(ii) the resignation by the Executive within one (1) year of one
or both of the following:
(A) a "Change of Control," as defined in Section 3.3(b);
and/or
(B) the date the individual who is Chairman of the Board of
the Company as of the Effective Date ceases to hold such position.
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Notwithstanding the foregoing, a termination on account of a reason described in
paragraph (i), shall be deemed not to be for Good Reason unless the Executive
(1) gives the Company the opportunity to cure the condition that purports to be
Good Reason, and (2) the Company fails to cure that condition within sixty (60)
days after the receipt of the Good Reason Notice (or, with respect to the
failure to make any payment when due to the Executive within ten (10) days after
the receipt of such notice).
(b) For purposes of this Agreement, a "Change of Control"
shall be deemed to occur if (i) there shall be consummated (x) any
consolidation, reorganization or merger of the Company in which the Company is
not the continuing or surviving corporation or pursuant to which shares of the
Company's common stock would be converted into cash, securities or other
property, other than a merger of the Company in which the holders of the
Company's common stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving coloration immediately
after the merger, or (y) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the assets of the Company, or (ii) the stockholders of the Company shall
approve any plan or proposal for liquidation or dissolution of the Company, or
(iii) any person (as such term is used in Sections 13(d) and 14(d)(2) of the
Exchange Act, including any "group" (as defined in Section 13(d)(3) of the
Exchange Act) (other than the Executive or any group controlled by the
Executive)) shall become the beneficial owner (within the meaning of Rule 13d-3
under the Exchange Act) of twenty percent (20%) or more of the Company's
outstanding common stock (other than pursuant to a plan or arrangement entered
into by such person and the Company) and
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such person discloses its intent to effect a change in the control or ownership
of the Company in any filing with the Securities and Exchange Commission, or
(iv) within any twenty-four (24) month period beginning on or after the
Effective Date, the persons who were directors of the Company immediately before
the beginning of such period (the "incumbent Directors") shall cease (for any
reason other than death, disability or retirement) to constitute at least a
majority of the Board or the board of directors of any successor to the Company,
provided that, any director who was not a director as of the Effective Date
shall be deemed to be an Incumbent Director if such director was elected to the
Board by, or on the recommendation of or with the approval of, at least
two-thirds of the directors who then qualified as Incumbent Directors either
actually or by prior operation of this Section 3.3(b)(iv) unless such election,
recommendation or approval was the result of any actual or threatened election
contest of the type contemplated by Regulation 14a-II promulgated under the
Exchange Act or any successor provision.
3.4 Severance. (a) If the Executive resigns for Good Reason, or is
terminated without Cause or at the end of the term hereof, or if the Company
gives the Executive notice of its intention not to extend the Term, in
accordance with Article II: (i) the Company shall cause the Executive's
outstanding options which are not immediately exercisable to vest and become
immediately exercisable and the restrictions on equity held by the Executive
which are scheduled to lapse solely through the passage of time to lapse (such
events collectively referred to as "Acceleration of Equity Rights") and
Executive shall have twenty-four (24) months from the date of termination to
exercise any vested options; and (ii) the Salary amount for purposes of the
calculating Salary and Bonus for the Severance Amount shall be the greater of
Executive's
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current Salary or Two Hundred Twenty Thousand Dollars ($220,000). On each
Anniversary Date, the adjusted Salary for purposes of this paragraph shall be
increased or decreased (but not below Two Hundred Twenty Thousand Dollars
($220,000)) by a percentage which is equal to the percentage increase or
decrease, as applicable, in the "Consumer Price Index for All Urban Consumers"
published by the United States Department of Labor's Bureau of Labor Statistics
for the then most recently ended twelve (12) month period as of the date of such
adjustment Once adjusted, such adjusted amount shall constitute Salary for
purposes of this paragraph.
In addition, the Company shall pay the Executive an amount (the
"Severance Amount") equal to three (3) times the sum of (1) his Salary in the
year of Termination or the immediately preceding year, whichever is greater and
(2) the Bonus Amount which shall be the greater of (A) the Executive's Bonus
Amount in the year of termination; (B) in the immediately preceding calendar
year, whichever is greater; or (C) fifty percent (50%) of the Salary amount used
for severance calculations, whichever is greater. Such Severance Amount shall be
payable in cash as follows:
(x) no later than ten (10) days after the effective date of
Executive's termination, the Company shall pay the Executive fifty
percent (50%) of the Severance Amount in a lump sum;
(y) commencing on the first day of the month following the
effective date of Executive's termination and on the first day of the
month thereafter for a period of thirty-six (36) months, the Company
shall pay the remaining fifty percent (50%) of the Severance Amount to
the Executive in equal monthly installments;
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provided, however, that if the Executive's employment terminates other than for
Cause within one (1) year following a Change of Control, the Company shall, in
lieu of the making the payments described in (x) and (y), pay the Executive the
Severance Amount in one lump sum payment within ten (10) days after the
effective date of Executive's termination.
In addition, for a period of three (3) years following the effective
date of the Executive's termination, the Company shall provide continued
employee benefits and coverage for the Executive and his dependents of the type
and at a level of coverage comparable to the coverage in effect at the time of
termination or the preceding year, whichever is greater ("Continued Benefits"),
including, but not limited, to those benefits and perquisites set forth in
Section 2.3 hereof. Such allowances, benefits and coverages, etc., to be not
less than those in effect on the Effective Date of Executive's termination or
the preceding year, whichever is greater. Notwithstanding the foregoing, if any
of the Continued Benefits or other benefits to be provided hereunder have been
decreased or otherwise negatively affected within twelve (12) months prior to
the effective date of the Executive's termination, the reference for measuring
such benefit shall be the date prior to such reduction rather than the date of
such termination.
(b) If the Executive is required, pursuant to Section 4999 of
the Internal Revenue Code of 1986, as amended (the "Code") to pay (through
withholding or otherwise) an excise tax on "excess parachute payments" as
defined in Section 280G of the Code, as amended, the Company shall pay the
Executive the full amount or amounts that are necessary to place the Executive
in the same after-tax financial position that he would have been in if he had
not incurred any tax liability under Section 4999 of the Code.
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3.5 Termination for Disability. (a) The Company may terminate the
Executive following a determination by the Chairman of the Board that the
Executive has a Permanent Disability; provided, however, that no such
termination shall be effective (i) prior to the expiration of the six (6) month
period following the date the Executive first incurred the condition which is
the basis for the Permanent Disability or (ii) if the Executive begins to
substantially perform the significant aspects of his regular duties prior to the
proposed effective date of such termination. For purposes of this Agreement,
"Permanent Disability" shall mean the Executive's inability, by reason of any
physical or mental impairment, to substantially perform the significant aspects
of his regular duties, as contemplated by this Agreement, which inability is
reasonably contemplated to continue for at least one (1) year from its
incurrence and at least ninety (90) days from the effective date of the
Executive's termination. Any question as to the existence, extent, or
potentiality of the Executive's Permanent Disability shall be determined by a
qualified independent physician selected by the Executive (or, if the Executive
is unable to make such selection, by the person designated in writing by
Executive prior to his inability to make such selection, and in the absence of
such designation by an adult member of the Executive's immediate family) and
reasonably acceptable to the Company.
(b) If the Executive is terminated because of his Permanent
Disability, the Company shall provide for the Acceleration of Equity Rights and,
the Company shall, (i) for a period of thirty-six (36) months following the
effective date of such termination (the "Disability Period") pay the Executive
one hundred percent (100%) of his Salary plus Bonus Amount, offset by the
amount, if any, paid to the Executive under the salary replacement portion of
disability
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benefits paid under a disability plan or policy paid for by the Company; and
(ii) provide him with Continued Benefits during the Disability Period.
3.6 Death or Disability after Termination. Should the Executive die or
become disabled before receipt of any or all payments to which the Executive is
entitled to under Section 3.4 (or in the case of the Executive's death following
his termination on account of Permanent Disability, before receipt of all
payments under Section 3.5) then the balance of the payments to which the
Executive is entitled shall continue to be paid to the Executive (in the case of
his disability) or to the executors or administrators of the Executive's estate
(in the event of the Executive's death); provided, however, that the Company
may, at any time within its discretion, accelerate any payments and pay the
Executive or his estate the present value of such payments in a lump sum cash
payment. For purposes of determining the present value under this Section 3.6,
the interest rate shall be the Prime Rate of Citibank, N.A.
3.7 Termination for Cause. If the Executive is terminated for Cause
during the Term of this Agreement or within one (1) year of a Change of Control
or thereafter, the Company shall pay the Executive a severance amount equal to
the sum of (a) his Salary in the year of Termination or the immediately
preceding year, whichever is greater and (b) the Bonus Amount which shall be the
greater of (i) the Executive's Bonus in the year of termination or (ii) in the
immediately preceding calendar year, whichever is greater, payable in equal
monthly installments for twelve (12) months. The Executive shall also receive
Continued Benefits for a period of twelve (12) months.
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ARTICLE IV
COVENANTS OF THE EXECUTIVE
4.1 Confidential Information. In connection with his employment at the
Company, the Executive will have access to confidential information consisting
of some or all of the following categories of information:
(a) Financial Information, including, but not limited to,
information relating to the Company's earnings, assets, debts, prices,
pricing structure, volume of purchases or sales or other financial data
whether related to the Company or generally, or to particular products,
services, geographic areas, or time periods;
(b) Supply and Service Information, including, but not limited
to, information relating to goods and services, suppliers' names or
addresses, terms of supply or service contracts or of particular
transactions, or related information about potential suppliers to the
extent that such information is not generally known to the public, and
the extent that the combination of suppliers or use of a particular
supplier, though generally known or available, yields advantages to the
Company, details of which are not generally known;
(c) Marketing Information, including, but not limited to,
information relating to details about ongoing or proposed marketing
programs or agreements by or on behalf of the Company, sales forecasts,
advertising formats and methods or results of marketing efforts or
information about impending transactions;
(d) Personnel Information, including, but not limited to,
information relating to employees' personnel or medical histories,
compensation or other terms of employment, actual or proposed
promotions, hirings, resignation, disciplinary actions, terminations or
reasons therefor, training methods, performance, or other employee
information; and
(e) Customer Information, including, but not limited to,
information relating to past, existing or prospective customers' names,
addresses or backgrounds, records of agreements and prices, proposals
or agreements between customers and the Company, status of customers'
accounts or credit, or related information about actual or prospective
customers as well as customer lists.
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All of the foregoing are hereinafter referred to as "Trade Secrets."
The Company and the Executive consider their relation one of confidence with
respect to Trade Secrets. Therefore, during and after the employment by the
Company, regardless of the reasons that such employment ends, the Executive
agrees:
(i) To hold all Trade Secrets in confidence and not
discuss, communicate or transmit to others, or make any
unauthorized copy of or use the Trade Secrets in any capacity,
position or business except as it directly relates to the
Executive's employment by the Company;
(ii) To use the Trade Secrets only in furtherance of
proper employment related reasons of the Company to further
the interests of the Company;
(iii) To take all reasonable actions that the Company
deems necessary or appropriate, to prevent unauthorized use or
disclosure of or to protect the Company's interest in the
Trade Secrets; and
(iv) That any of the Trade Secrets, whether prepared
by the Executive or which may come into the Executive's
possession during the Executive's employment hereunder, are
and remain the property of the Company and its affiliates, and
all such Trade Secrets, including copies thereof, together
with all other property belonging to the Company or its
affiliates, or used in their respective businesses, shall be
delivered to or left with the Company.
This Agreement does not apply to (A) information that by means other
than the Executive's deliberate or inadvertent disclosure becomes known to the
public; (B) disclosure compelled by judicial or administrative proceedings
provided the Executive affords the Company the opportunity to obtain assurance
that compelled disclosures will receive confidential treatment; and (C)
information independently developed by the Executive, the development of which
was not a breach of this Agreement.
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4.2 Non-Competition. (a) During the Term and for a period of eighteen
(l8) months thereafter (or in the event of the termination of Executive's
employment under any provision herein within one (1) year after a Change of
Control or Executive's termination for Cause, for a period of one (1) year
thereafter), the Executive agrees that he will not, without the express written
consent of the Company, for the Executive or on behalf of any other person,
firm, entity or other enterprise (i) directly or indirectly solicit for
employment or recommend to any subsequent employer of the Executive the
solicitation for employment of any person who, at the time of such solicitation
is employed by Company or any affiliate thereof, (ii) directly or indirectly
solicit, divert, or endeavor to entice away any customer of the Company or any
affiliate thereof or otherwise engage in any activity intended to terminate,
disrupt, or interfere with the Company's or any affiliate's relationship with a
customer, supplier, lessee or other person, or (iii) be employed by, be a
director, officer or manager of, act as a consultant for, be a partner in, have
a proprietary inters in, give advice to, loan money to or otherwise associate
with, any person, enterprise, partnership association, corporation, joint
venture or other entity which is directly or indirectly in the business of
owning, operating, managing or providing consulting services to a real estate
investment trust ("REIT) primarily engaged in owning or lending to healthcare -
related facilities, properties and entities. This provision shall not be
construed to prohibit the Executive from owning up to ten percent (10%) of the
outstanding voting shares of the equity securities of any company whose common
stock is listed for trading on any national securities exchange or on the NASDAQ
System or serving as a director or advisor to the board of directors
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of any company. The provisions of this Section 4.2 shall only apply to
businesses and operations located in, or otherwise conducted in, the United
States.
4.3 Remedies for Breach of Article IV. In the event that the Executive
materially violates the covenants containing in this Article IV, after his
termination of employment under circumstances which entitle him to payments or
benefits under Section 3.4, the Company may, at its election, upon ten (10)
days' prior notice, terminate the Severance Period and cease providing the
Executive with such payments and benefits. In addition, the Executive
acknowledges and agrees that the amount of damages in the event of the
Executive's breach of this Article IV will be difficult, if not impossible, to
ascertain. The Executive therefore agrees that the Company, in addition to, and
without limiting any other remedy or right it may have, shall have the right to
an injunction enjoining any breach of the covenants made by the Executive in
this Article IV.
ARTICLE V
AMENDMENT AND ASSIGNMENT
5.1 Right of the Executive to Assign. The Executive may not assign,
transfer, pledge or hypothecate or otherwise transfer his rights, obligations,
interests and benefits under this Agreement and any attempt to do so shall be
null and void.
5.2 Right of Company to Assign. This Agreement shall be assignable and
transferable by the Company and any such assignment or transfer shall inure to
the benefit of and be binding upon the Executive, the Executive's heirs and
personal representatives, and the Company and its successors and assigns. The
Executive agrees to execute all documents
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necessary to ratify and effectuate such assignment. An assignment of this
Agreement by the Company shall not release the Company from its monetary
obligations under this Agreement.
5.3 Amendment/Waiver. No change or modification of this Agreement shall
be valid unless it is in writing and signed by both parties hereto. No waiver of
any provisions of this Agreement shall be valid unless in writing and signed by
the person or party to be charged.
ARTICLE VI
GENERAL
6.1 Governing Law. This Agreement shall be subject to and governed by
the laws of the State of Florida.
6.2 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Company and the Executive and their respective heirs, legal
representatives, executors, administrators, successors and permitted assigns.
6.3 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes the Prior Agreement and all other prior
agreements, either oral or written, between the parties hereto; provided,
however, that this Agreement does not supersede any agreements pertaining to
stock options which have been granted as of the Effective Date, except to the
extent that any such option agreement contains provisions which are contrary to
the provisions of this Agreement (including provisions regarding the
Acceleration of Equity Rights).
6.4 Mitigation. The Executive shall not be required to mitigate damages
or the amount of any payment provided for under this Agreement by seeking other
employment or
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otherwise nor may any payments provided for under this Section be reduced by any
amounts earned by the Executive, except as provided in Article IV.
6.5 Survivorship. The respective rights and obligations of the parties
hereunder shall survive the termination of this Agreement to the extent
necessary to preserve the rights and obligations of the parties under this
Agreement.
6.6 Notices. All notices, demands, requests, consents, approvals or
other communications required or permitted hereunder shall be in writing and
shall be delivered by hand, registered or certified mail with return receipt
requested or by a nationally recognized overnight delivery service, in each case
with all postage or other delivery charges prepaid, and to the address of the
party to whom it is directed as indicated below, or to such other address as
such party may specify by giving notice to the other in accordance with the
terms hereof. Any such notice shall be deemed to be received (a) when delivered,
if by hand, (b) on the next business day following timely deposit with a
nationally recognized overnight delivery service or (c) on the date shown on the
return receipt as received or refused or on the date the postal authorities
state that delivery cannot be accomplished, if sent by registered of certified
mail, return receipt requested.
If to the Company: Monarch Properties, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to the Executive: ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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6.7 Indemnification. The Company agrees to maintain Director's and
Officer's liability insurance at a level not less than the level in effect on
the date of the public offering of the Company, or to the extent such level is
increased during the Term, at such increased level; provided, however, that the
level of insurance may be decreased with the Executive's written consent. To the
extent not covered by such liability insurance, the Company shall indemnify and
hold the Executive harmless to the fullest extent permitted by Maryland law
against any judgments, fines, amounts paid in settlement and reasonable expenses
(including reasonable and documented attorneys' fees), and advance amounts
necessary to pay the foregoing at the earliest time and to the fullest extent
permitted by law, in connection with any claim, action or proceeding (whether
civil or criminal) against the Executive as a result of his serving as an
officer or director of the Company or in any capacity at the request of the
Company in or with regard to any other entity, employee benefit plan or
enterprise. This indemnification shall be in effect during the Term and
thereafter and shall be in addition to and not in lieu of any other
indemnification rights the Executive may otherwise have.
6.8 Attorneys' Fees. Upon presentation of an invoice, the Company shall
pay directly or reimburse the Executive for all reasonable and documented
attorneys' fees and costs incurred by the Executive:
(a) in connection with the negotiation, preparation and execution
of this Agreement;
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(b) in connection with any dispute brought by the Executive over
the terms of this Agreement unless there is a determination that the
Executive had no reasonable basis for his claim; and
(c) in connection with any other event indemnifiable by the
Company pursuant to insurance coverage or Maryland law in which the
Executive engages separate representation.
6.9 Arbitration. Except as otherwise provided in Section 4.3, any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration, conducted before a panel of three (3)
arbitrators in Naples, Florida, in accordance with the rules of the American
Arbitration Association their in effect, and judgement may be entered on the
arbitrators' award in any court having jurisdiction. The Company shall pay all
costs of the American Arbitration Association and the arbitrator. Each party
shall select one (1) arbitrator, and the two (2) so designated shall select a
third arbitrator. If either party shall fail to designate an arbitrator within
seven (7) days after arbitration is requested, or if the two (2) arbitrators
shall fail to select a third arbitrator within fourteen (14) days after
arbitration is requested, then an arbitrator shall be selected by the American
Arbitration Association upon application of either party. Notwithstanding the
foregoing, the Executive shall be entitled to seek specific performance from a
court of the Executive's right to be paid until the date of termination during
the pendency of any dispute or controversy arising under or in connection with
this Agreement and the Company shall have the night to obtain injunctive relief
from a court.
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6.10 Severability. No provision in this Agreement if held unenforceable
shall in any way invalidate any other provisions of this Agreement, all of which
shall remain in full force and effect.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the Company and the Executive have caused this
Employment Agreement to be signed and delivered as of the day and year first
above written.
COMPANY EXECUTIVE
MONARCH PROPERTIES, INC.
By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Chairman of the Board
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