UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES ACT OF
- --- 1934
For the quarterly period ended June 30, 1996
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES ACT OF
- --- 1934
For the transition period from to
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Commission file number 1-10093
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MASSACHUSETTS 13-6908488 - ------------- ---------- (State or other jurisdiction (I.R.S. Employer Identification of incorporation or organization) Number) 27600 Northwestern Highway, Suite 200, Southfield, Michigan 48034 - ------------------------------------------------ ----- (Address of principal executive offices) (Zip code) |
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Number of shares of beneficial interest ($.10 par value) of the Registrant outstanding as of July 8, 1996: 7,123,105.
INDEX
Part I. FINANCIAL INFORMATION Page No.
--------
Item 1. Financial Statements
Consolidated Balance Sheets - June 30, 1996
December 31, 1995............................................................... 3
Consolidated Statements of Operations - Three Months and Six Months Ended
June 30, 1996 and 1995.......................................................... 4
Consolidated Statement of Shareholders' Equity - Six Months Ended
June 30, 1996................................................................... 5
Consolidated Statements of Cash Flows - Six Months Ended
June 30, 1996 and 1995.......................................................... 6
Notes to Consolidated Financial Statements.............................................. 7
Item 2.
Management's Discussion and Analysis of Financial Condition
and Results of Operations....................................................... 16
Item 4.
Submission of Matters to a Vote of
Security Holders................................................................ 21
Part II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K....................................................... 22
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PART I - FINANCIAL INFORMATION
ITEM 1 - FINANCIAL STATEMENTS
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED BALANCE SHEETS
(in thousands, except per share data)
June 30, December 31,
1996 1995 (*)
-------- ------------
(unaudited)
ASSETS
Real Estate, Net (Note 3) $283,871 $ 55,299
Mortgage Loans Receivable, net of allowance
for possible loan losses of $10,231
in 1995 0 36,023
REMIC Investments 0 58,099
Interest and Accounts receivable, net 1,929 7,748
Due from Atlantic Realty Trust 5,644 0
Other assets, net (Note 4) 1,722 11,945
Equity Investments in Unconsolidated Entities 5,395 0
Cash and cash equivalents 3,024 11,467
-------- --------
TOTAL $301,585 $180,581
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
LIABILITIES
Mortgages and Notes Payable (Note 5) $114,530 $0
Distributions Payable 2,738 2,279
Accounts Payable 2,067 1,282
Accrued Expenses 5,682 0
Due to Ramco Affiliates 10,037 0
-------- --------
TOTAL LIABILITIES 135,054 3,561
COMMITMENTS AND CONTINGENCIES (Note 7) -- --
MINORITY INTEREST 44,961 0
SHAREHOLDERS' EQUITY 121,570 177,020
-------- --------
TOTAL $301,585 $180,581
======== ========
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See notes to consolidated financial statements
(*) The 1995 historical results consist of the operations of RPS Realty Trust
(Note 1)
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
(Unaudited)
FOR THE THREE MONTHS FOR THE SIX MONTHS
ENDED ENDED
JUNE 30, JUNE 30,
1996 1995 (*) 1996 1995 (*)
---- -------- ---- --------
REVENUES
Minimum rents $5,790 $1,527 $7,254 $3,157
Percentage rents 250 236 646 494
Recoveries from tenants 2,879 387 3,364 791
Interest and other income 632 1,928 2,548 3,883
------- ------ ------- ------
TOTAL REVENUES 9,551 4,078 13,812 8,325
------- ------ ------- ------
EXPENSES
Property operating and maintenance 2,646 502 3,048 853
Real estate taxes 831 329 1,159 660
General and administrative 1,205 1,004 2,287 1,974
Interest expense 1,740 0 1,740 0
Depreciation and amortization 1,208 305 1,465 604
Spin-off and other expenses (Note 1) 6,276 0 7,933 0
Allowance for loan losses 0 0 0 3,000
------- ------ ------- ------
TOTAL EXPENSES 13,906 2,140 17,632 7,091
------- ------ ------- ------
OPERATING INCOME (LOSS) (4,355) 1,938 (3,820) 1,234
LOSS FROM UNCONSOLIDATED ENTITIES (92) 0 (92) 0
------- ------ ------- ------
INCOME (LOSS) BEFORE MINORITY INTEREST (4,447) 1,938 (3,912) 1,234
MINORITY INTEREST (447) 0 (447) 0
------- ------ ------- ------
NET INCOME (LOSS) ($4,894) $1,938 ($4,359) $1,234
======= ====== ======= ======
NET INCOME (LOSS) PER SHARE ($0.69) $0.27 ($0.61) $0.17
======= ====== ======= ======
WEIGHTED AVERAGE SHARES OUTSTANDING 7,123 7,123 7,123 7,123
======= ====== ======= ======
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See notes to consolidated financial statements
(*) The 1995 historical results consist of the operations of RPS Realty Trust
(Note 1)
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(in thousands)
(Unaudited)
SHARES OF ADDITIONAL CUMULATIVE TOTAL
BENEFICIAL INTEREST PAID-IN EARNINGS/ SHAREHOLDERS'
---------------------------
NUMBER AMOUNT CAPITAL DISTRIBUTION EQUITY
------ ------- -------- ------------ -----------
BALANCE AT JANUARY 1, 1996 7,123 $712 $197,061 ($20,753) $177,020
Assets transferred in spin-off transaction (45,483) (45,483)
Minority interests' equity (1,335) (1,335)
Cash Distributions Declared (4,273) (4,273)
Net loss for the six months ended June 30, 1996 (4,359) (4,359)
----- ---- -------- -------- --------
BALANCE AT JUNE 30, 1996 7,123 $712 $150,243 ($29,385) $121,570
===== ==== ======== ======== ========
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See notes to consolidated financial statements
RAMCO-GERSHENSON PROPERTIES TRUST
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(Unaudited)
FOR THE SIX MONTHS
ENDED
JUNE 30,
1996 1995 (*)
---- --------
CASH FLOWS FROM OPERATING ACTIVITIES
NET INCOME (LOSS) ($4,359) $1,234
Adjustments to reconcile net income to
net cash flows provided by operating
activities:
Provision for possible loan losses 129 3,000
Write-off of deferred acquisition expenses 2,154 0
Loss on disposal of REMICs 91 0
Depreciation and Amortization 1,465 604
Loss from unconsolidated entities 92 0
Minority Interest 447 0
Changes in assets and liabilities that
provided (used) cash:
Interest and accounts receivable 5,232 350
Other assets (966) (4,345)
Accounts payable and accrued expenses 2,770 14
------ -----
Total Adjustments 11,414 (377)
CASH FLOWS PROVIDED BY ------ -----
OPERATING ACTIVITIES 7,055 857
------ -----
CASH FLOWS FROM INVESTING ACTIVITIES
Satisfaction of Mortgage Loans Receivable (3,417) 3,000
Amortization of REMICs 1,100 0
Proceeds from REMICS 56,908 0
Real Estate Acquired (1,574) (811)
CASH FLOWS PROVIDED BY ------ -----
INVESTING ACTIVITIES 53,017 2,189
------ -----
CASH FLOWS FROM FINANCING ACTIVITIES
Distributions to shareholders (4,559) (4,559)
Principal repayments on debt (70,050) 0
Advances to affiliated entities, net (4,044) 0
Advances from affiliated entities, net 232 0
Borrowings on debt 9,906 0
------- -------
CASH FLOWS USED IN
FINANCING ACTIVITIES (68,515) (4,559)
======= =======
Net decrease in cash and cash equivalents ($8,443) ($1,513)
======= =======
Cash and cash equivalents, beginning of period $11,467 $74,584
======= =======
Cash and cash equivalents, end of period $3,024 $73,071
======= =======
SUPPLEMENTAL DISCLOSURES OF CASH
FLOW INFORMATION - CASH PAID FOR
INTEREST DURING THE PERIOD $1,106 $0
------ -------
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING
AND FINANCING ACTIVITIES
Accrued distributions payable $2,738 $2,279
Spin-off of Net Assets to Atlantic $45,483 $0
Acquisition of Ramco:
Debt assumed $176,556 $0
Value of OP Units issued $43,835 $0
Other liabilities assumed $2,097 $0
Debt assumed from Ramco affiliates in exchange
for real estate $9,805 $0
Interest and Accounts Payable $0 ($326)
Allowance for Possible Loan Losses $0 $1,876
Mortgages Receivable $0 ($1,550)
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See notes to consolidated financial statements
(*) The 1995 historical results consist of the operations of RPS Realty Trust
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
1. RAMCO ACQUISITION AND SPIN-OFF TRANSACTIONS
Effective May 1, 1996, Ramco-Gershenson Properties Trust, formerly known as RPS Realty Trust (the "Company"), completed the previously announced acquisition of substantially all of the shopping center and retail properties, as well as the management organization, personnel, and business operations of Ramco-Gershenson, Inc. and its affiliates (the "Ramco Acquisition") and the spin-off of its wholly owned subsidiary Atlantic Realty Trust ("Atlantic"), a Maryland real estate investment trust. In connection with the Ramco Acquisition, the Company's name was changed to Ramco-Gershenson Properties Trust and a one-for-four reverse stock split was effectuated as of the close of business on May 1, 1996.
Concurrent with the Ramco Acquisition, the former owners of the Ramco Properties
(as defined below) and the shareholders of Ramco-Gershenson, Inc. ("Ramco")
(collectively, the "Ramco Group") transferred to Ramco-Gershenson Properties,
L.P. (the "Operating Partnership") (i) their interests in 20 shopping center and
retail properties (the "Ramco Properties") containing an aggregate of
approximately 5,114,000 square feet of total GLA, of which approximately
3,706,000 square feet is owned by the Operating Partnership, and the balance is
owned by certain anchor tenants, (ii) 100% of the non-voting common stock and 5%
of the voting common stock in Ramco (representing in excess of a 95% economic
interest in Ramco), (iii) 50% general partner interests of two partnerships
which each own a shopping center, (iv) rights in and/or options to acquire
certain development land , (v) options to acquire the Ramco Group's interest in
six shopping center properties and (vi) five outparcels.
In return for these transfers, the Ramco Group received, 2,377,492 units of the Operating Partnership (representing an approximate 25% limited partnership interest in the operating partnership). In addition, the Ramco Group received 279,181 units (the "PharMor Space Units") as a partial earnout relative to Jackson Crossing Shopping Center (representing an approximate 2% limited partnership interest in the operating partnership). Ramco Group's aggregate units of 2,656,673 represent an approximate 27% limited partnership interest in the Operating Partnership. The Company assumed approximately $176,556 of secured indebtedness on the Ramco Properties. The aggregate interest in the Operating Partnership to be received by the Ramco Group may be increased to a maximum of approximately 29% if certain leasing plans with respect to one of the Ramco Properties are fulfilled. Subject to certain limitations, the interests in the Operating Partnership are exchangeable into shares of the Company on a one-for-one basis beginning on May 10, 1997.
Pursuant to the Ramco Acquisition, the Company transferred to the Operating Partnership six properties containing an aggregate of approximately 931,000 square feet of gross leaseable area ("GLA") and $68,000 in cash in exchange for 7,123,105 units of the Operating Partnership (representing a 1% General Partnership interest, and a 72% limited partnership interest after giving effect for the reduction of 2% for the Ramco Group's earnout).
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
Concurrently with the closing of the Ramco Acquisition, the Company's former mortgage loan portfolio as well as certain of its former real estate assets were transferred to Atlantic and the shares of Atlantic were distributed to the Company's shareholders.
For the six months ended June 30, 1996 non-recurring expenses, including the spin-off of Atlantic have been charged to operations as follows:
Severance and other termination costs $4,629
Directors and officers insurance 1,150
Write-off of deferred acquisition expense 2,154
------
$7,933
======
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2. BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION - The accompanying interim financial statements and related notes of the Company are unaudited; however, they have been prepared in accordance with generally accepted accounting principles for interim financial reporting, the instructions to Form 10-Q and the rules and regulations of the Securities and Exchange Commission. Accordingly, certain information and footnote disclosures normally included in financial statements prepared under generally accepted accounting principles have been condensed or omitted pursuant to such rules. The unaudited interim financial statements should be read in conjunction with the audited financial statements and related notes included in the Company's Annual Report on Form 10-K for the year ended December 31, 1995. In the opinion of management, all adjustments (consisting only of normal recurring adjustments) necessary for a fair presentation of the financial statements for the interim periods have been made. The results for interim periods are not necessarily indicative of the results for a full year.
The consolidated financial statements of the Company include the effects of the Ramco Acquisition and the spin-off of Atlantic as well as the operations of the Operating Partnership for the 61-day period ended June 30, 1996.
RECLASSIFICATIONS - Certain reclassifications have been made to the 1995 consolidated financial statements in order to conform with the 1996 presentation.
OTHER ASSETS - consist primarily of financing costs and leasing costs which are amortized over the terms of the respective agreements.
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
PRINCIPLES OF CONSOLIDATION - The consolidated financial statements include the accounts of the Company and its majority owned subsidiary, the Operating Partnership (73% owned by the Company at June 30, 1996). All significant intercompany accounts and transactions have been eliminated in consolidation.
INVESTMENTS IN UNCONSOLIDATED ENTITIES - consist of 50% general partner interests in Kentwood Town Center ("Kentwood") and the Southfield Plaza Expansion ("Southfield Plaza") and the Company's 100% interest in the non-voting and 5% interest in the voting common stock of Ramco. These investments are not unilaterally controlled and are therefore accounted for on the equity method.
REAL ESTATE - Real estate assets are stated at cost. Costs incurred for the acquisition, development, construction, and improvement of properties are capitalized, including direct costs incurred by Ramco. Depreciation is computed using the straight-line method over estimated useful lives. Expenditures for improvements and construction allowances paid to tenants are capitalized and amortized over the remaining life of the initial terms of each lease. Maintenance and repairs are charged to expense when incurred.
REVENUE RECOGNITION - Shopping center space is generally leased to retail tenants under leases which are accounted for as operating leases. Minimum rents are recognized on the straight-line method over the terms of the leases. Percentage rents are recognized as earned on an accrual basis over the terms of the leases. The leases also typically provide for tenant recoveries of common area maintenance, real estate taxes and other operating expenses. These recoveries are recognized as revenue in the period the applicable costs are incurred.
An allowance for doubtful accounts has been provided against the portion of tenant accounts receivable which is estimated to be uncollectible. Accounts receivable in the accompanying balance sheet is shown net of an allowance for doubtful accounts of approximately $147 as of June 30, 1996.
EARNINGS PER COMMON SHARE - Computations of earnings per common share are based on the weighted number of shares outstanding during the period. Common shares issuable under stock options have not been considered in the computation of earnings per share because such inclusion would be anti-dilutive.
The conversion of an Operating Partnership unit to common stock will have no effect on earnings per share since the allocation of earnings to an Operating Partnership unit is equivalent to earnings allocated to a share of common stock.
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
MINORITY INTEREST - represents the Ramco Group's 27% interest as a limited partner of the Operating Partnership. Such interest is held in the form of Operating Partnership Units which are exchangeable on an equivalent basis with common shares of the Company.
3. REAL ESTATE
The Company's real estate at June 30, 1996 and December 31, 1995 are as follows:
JUNE 30, 1996 DECEMBER 31, 1995
Land $ 37,542 $18,459
Buildings and Improvements 240,340 40,387
Construction-in-progress 9,906 0
--------- -------
Total 287,788 58,846
Less: Accumulated Depreciation 3,917 3,547
--------- -------
$283,871 $55,299
========= =======
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4. OTHER ASSETS
Other assets at June 30, 1996 and December 31, 1995 are as follows:
JUNE 30, 1996 DECEMBER 31, 1995
Leasing costs, net 875
Deferred financing costs, net 439
Other, net 408
Deferred acquisition expenses, net $ 2,154
Transaction advances 9,791
------ -------
$1,722 $11,945
====== =======
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RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
5. MORTGAGES AND NOTES PAYABLE
Mortgages and notes payable at June 30, 1996 consist of the following:
Fixed rate mortgages with interest rates ranging
from 7.8% to 8.75% due at various dates through
2006 $99,999
Floating rate mortgages at 75% of the rate of
long-term Capital A rated utility bonds due
December 1, 1996 7,000
Credit Facility, with an interest rate at the
reserve adjusted Eurodollar rate plus 1.75%
basis points, due May 1999, maximum available
borrowings of $50,000 7,531
---------
$114,530
=========
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The mortgage notes are secured by mortgages on properties that have an approximate net book value of $136,664 as of June 30, 1996. The Credit Facility is secured by mortgages on various properties that have an approximate net book value of $76,146 as of June 30, 1996.
The following table presents scheduled principal payments on mortgages and notes payable as of June 30, 1996:
Year ended December 31,
1996 (July 1, 1996 to December 31, 1996)....... $7,421
1997........................................... 1,874
1998........................................... 3,799
1999........................................... 9,558
2000........................................... 2,130
Thereafter........................................ 89,748
---------
Total $114,530
=========
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RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
6. LEASES
The Company is engaged in the operation of shopping center and retail properties and leases space to tenants and certain anchors pursuant to lease agreements. The lease agreements provide for terms ranging from three to 30 years and, in some cases, for annual rentals which are subject to upward adjustment based on operating expense levels and sales volume.
Approximate future minimum rent under noncancelable operating leases in effect at June 30, 1996, assuming no new or renegotiated leases nor option extensions on lease agreements, is as follows:
Year ended December 31,
1996 (July 1, 1996 to December 31, 1996)...... $ 14,779
1997.......................................... 27,090
1998.......................................... 23,320
1999.......................................... 20,407
2000.......................................... 16,827
Thereafter.................................... 118,050
-----------
Total......................................... $ 220,473
===========
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7. COMMITMENTS AND CONTINGENCIES
Certain of the Ramco Properties (Roseville Plaza, Lake Orion Plaza and Jackson Crossing) contain environmental contamination caused by underground storage tanks. Remediation programs have been implemented at Roseville Plaza and Jackson Crossing with Lake Orion Plaza to be implemented in the future. Since third parties are obligated and have paid for remediation work to date, in management's opinion the Company will not incur any future costs related to the remediation work. Management of the Company is not aware of any other situations which require remediation.
During the third quarter of 1994, the Company held more than 25% of the value of its gross assets in overnight Treasury Bill reserve repurchase transactions which the United States Internal Revenue Service (the "IRS") may view as non-qualifying assets for the purposes of satisfying an asset qualification test applicable to REITs, based on a Revenue Ruling published in 1977 (the "Asset Issue"). The Company has requested that the IRS enter into a closing agreement with the Company that the Asset Issue will not impact the Company's status as a REIT. The IRS has deferred any action relating to the Asset Issue pending the further examination of the Company's 1991-1994 tax returns. Based on developments in the law which occurred since 1977, the Company's legal counsel has rendered an opinion that the Company's investment in Treasury Bill repurchase obligations would not adversely affect its REIT status. However, such opinion is not binding upon the IRS. In connection with the spin-off of Atlantic, Atlantic has assumed all tax liability arising out of the Asset Issue and the IRS audit of the Company's 1991-1994 tax returns. In connection with the assumption of such potential
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
liabilities, Atlantic and the Company have entered into a tax agreement which provides that the Company (under the direction of its Continuing Trustees), and not Atlantic, will control, conduct and effect the settlement of any tax claims against the Company relating to the Asset Issue. Accordingly, Atlantic will not have any control as to the timing of the resolution or disposition of any such claims. No assurance can be given that the resolution or disposition of any such claims will be on terms or conditions favorable to the Company. The Company and Atlantic also received an opinion from legal counsel that, to the extent there is a deficiency in the Company's taxable income arising out of the IRS examination and provided the Company makes a deficiency dividend (i.e, declares and pays a distribution which is permitted to relate back to the year for which each deficiency was determined to satisfy the requirement that the REIT distribute 95 percent of its taxable income), the classification of the Company as a REIT for the taxable years under examination would not be affected. If notwithstanding the above-described opinions of legal counsel, the IRS successfully challenged the status of the Company as a REIT, its status could be adversely affected.
8. SHARE OPTION PLAN
Concurrent with the Ramco Acquisition, the Company adopted a share option plan (the "Plan") to enable its employees to participate in the ownership of the Company. The Plan is designed to attract and retain executive officers and other key employees of the Company, to encourage a proprietary interest in the Company, and to provide incentives to employees.
Under the Plan, executive officers and employees of the Company may be granted options to acquire shares of common stock of the Company ("Options"). The Plan is administered by the independent trustee members of the Compensation Committee, who are authorized to select the executive officers and other employees to whom Options are to be granted. No member of the compensation committee is eligible to participate in the Plan.
The compensation committee, at its discretion, determines the number of Options to be granted. At June 30, 1996, the Plan provided for Options to purchase up to 855,000 shares of the Company's stock. However, no more than 50,000 stock options may be granted to any one individual in any calendar year.
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS)
(UNAUDITED)
Each option will have an exercise price equal to the fair market value of the shares of the Company at the date of grant.
In connection with the Ramco Acquisition and the spin-off of Atlantic, the Company granted certain principals of the Ramco Group, options to purchase 120,000 shares at an exercise price of $16.00 per share. Subsequent to the Ramco Acquisition, an additional 25,000 options have been granted to the Chief Financial Officer.
9. PRO FORMA FINANCIAL INFORMATION
The following pro forma consolidated statements of operations have been presented as if (i), the Ramco Acquisition and the spin-off of Atlantic had occurred on January 1, 1995, and (ii) the Company had qualified as a REIT, distributed all of its taxable income and, therefore had incurred no tax expense during the periods. In management's opinion all adjustments necessary to reflect the Ramco Acquisition and spin-off of Atlantic have been made. The pro forma consolidated statements of operations are not necessarily indicative of what the actual results of operations of the Company would have been had such transactions actually occurred as of January 1, 1995, nor do they purport to represent the results of the Company for future periods.
RAMCO-GERSHENSON PROPERTIES TRUST
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
SIX MONTHS ENDED JUNE 30,
1996 1995
----------------------------
REVENUES
Minimum rents $15,289 $14,702
Percentage rents 856 957
Recoveries from tenants 8,274 7,754
Interest and other income 239 171
------- -------
TOTAL REVENUES 24,658 23,584
EXPENSES
Property operating and maintenance 5,933 5,482
Real estate taxes 2,594 2,568
General and administrative 2,412 1,535
Interest expense 4,940 4,940
Depreciation and amortization 3,180 3,180
Spin-off and other expenses 7,933 -
-------- -------
TOTAL EXPENSES 26,992 17,705
-------- -------
OPERATING INCOME (LOSS) (2,334) 5,879
LOSS FROM UNCONSOLIDATED ENTITIES (189) (473)
-------- -------
INCOME (LOSS) BEFORE MINORITY INTEREST (2,523) 5,406
MINORITY INTEREST (1,461) (1,353)
-------- -------
NET INCOME (LOSS) $(3,984) $4,053
======== =======
PRO FORMA EARNINGS (LOSS) PER SHARE $ (.56) $ .57
======== =======
WEIGHTED AVERAGE NUMBER OF COMMON
SHARES OUTSTANDING 7,123 7,123
======== =======
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS FROM OPERATIONS
(Dollars in Thousands)
OVERVIEW
The following should be read in conjunction with the Consolidated Financial Statements of the Company, including the respective notes thereto which are included in this Form 10-Q. Capitalized terms used herein and not defined below have the meanings set forth in the Trust's definitive proxy statement dated as of March 29, 1996 (the "Proxy Statement").
The Pro Forma Consolidated Statements of Operations which are included in Note 9 to the Consolidated Financial Statements are presented as if the Company had been a REIT for the entire periods presented and the Ramco Acquisition and the Spin-off Transaction had been completed at the beginning of the periods presented.
In connection with the Ramco Acquisition, the Trust acquired, among other things, interests in the 22 Ramco Properties, assumed and incurred certain debt, and repaid a portion of the debt encumbering the Ramco Properties. Also, due to the re-leasing of the Phar Mor Space at the Jackson Crossing Property as part of the earnout prior to closing, the Ramco Group became entitled to 279,181 additional Operating Partnership units issued effective at closing. In connection with the Spin-off Transaction, the Company transferred its remaining mortgage portfolio as well as certain other assets, which included interests in its Norgate Center and 9 North Wabash Avenue properties, to Atlantic Realty Trust (a newly formed real estate investment trust), shares in which were distributed ratably to the Shareholders of the Trust. With the closing of the Ramco Acquisition and the consummation of the Spin-off Transaction the Trust successfully completed its previously announced plan to transform itself into an equity REIT. The discussion below should be read in conjunction with the discussion set forth in the Proxy Statement.
CAPITAL RESOURCES AND LIQUIDITY
As of the closing of the Ramco Acquisition (the "Closing"), the Company assumed debt on the Ramco Properties amounting to $176,556. In conjunction with the Closing and giving effect to the application of the RPS Cash and the initial drawdown of $9,906 on the Credit Facility, mortgage indebtedness of $69,485 was paid down. Taking into account the mortgage indebtedness remaining after the paydowns and the initial draw on the Credit Facility, the Company had long term debt of $116,977 upon the Closing of the Ramco Acquisition.
At the Closing, a total of $9,906 was borrowed under the Credit Facility, which will mature on May 6, 1999. As of the Closing, $25,000 of the Credit Facility was in place, of which only $12,300 was available for borrowing. The balance of the $25,000 Credit Facility was to become available upon receipt by the lender of satisfactory appraisals with respect to certain of the properties securing the Credit Facility. Effective June 1996, the appraisals had been completed and the availability under the Credit Facility was increased to $25,000, subject to borrowings outstanding at that point. During June 1996 negotiations were completed with a second participant-lender and the Credit Facility was increased to $50,000. A total of approximately $10,500 will be borrowed under the Credit Facility to be used to reimburse affiliates of Ramco for certain out-of-pocket costs incurred in connection with certain development opportunities acquired by the Trust. As stated in the Proxy Statement, the Trust intends to use the balance of the Credit Facility principally to fund future acquisitions, developments, expansions and redevelopments.
At the Closing, the Trust made a loan to, and assumed an obligation of, Atlantic. In that connection, Atlantic is obligated to pay the Trust the sum of $5,550 pursuant to a promissory note which matures on November 9, 1997 and bears interest at the Base Rate under the Credit Facility (which was 8.25% at Closing). The promissory note is secured by a collateral assignment of the borrower's interest in the Hylan Center. Subsequent to the quarter ended June 30, 1996 Atlantic repaid $3,500 plus accrued interest.
Atlantic used the proceeds of the promissory note primarily to make (on behalf of the Trust or otherwise) certain required severance and bonus payments to the Trust's executive officers, to pay the cost of a run-off directors' and officers' liability insurance policy for the Trust, to pay the cost of a directors' and officers' liability insurance policy for Atlantic, and to provide cash for Atlantic's initial working capital.
RECENT DEVELOPMENTS
Subsequent to the Closing, the lender holding the $7,000 of bonds secured by the Oakbrook Square Shopping Center exercised its option to tender the bonds for purchase on December 1, 1996. The underlying bonds have a maturity date of January 1, 2010. The Company is pursuing various alternatives to find new lender(s) to buy the bonds to hold until maturity but it is not
known at this time whether a buyer will be found. The Company may need to draw on the Credit Facility to either retire the bonds or purchase the bonds until a new buyer can be found.
In August 1996, the Trust intends to purchase a Shopping Center for approximately $2,200. The Trust expects to borrow on the Credit Facility in order to fund the acquisition.
Expansions are currently underway at the Tel-Twelve Mall, Spring Meadows Shopping Center, and the Troy Towne Center. The costs relative to these expansions are anticipated to be approximately $3,900 and will be paid for by borrowings under the Credit Facility.
RESULTS OF OPERATIONS
Six months ended June 30, 1996 compared to six months ended June 30, 1995
Total revenues for the six months ended June 30, 1996 increased $5,487, or 65%, as compared to the six months ended June 30, 1995. Minimum rents increased to $7,254, an increase of $4,097, or 130%, for the six months ended June 30, 1996 as compared to the six months ended June 30, 1995. Percentage rents and tenant recoveries increased $2,725, or 212%, from $1,285 in 1995 to $4,010 in 1996. These net increases are primarily attributable to the acquisition of the Ramco Properties effective May 1, 1996. Two months of the Ramco Properties' operating results have been included in the six months ended June 30, 1996 as compared to none in the corresponding six months of 1995. In addition, due to the Spin-off Transaction, two properties which were part of the Trust portfolio at June 30, 1995 were spun off effective May 1, 1996 and therefore the revenues for the six months of 1996 include only four months of their activity as compared to six months in 1995. The Company's results also show a decrease in the revenues derived from the mortgage loan portfolio which was spun off as of May 1, 1996.
During the six months ended June 30, 1996 expenses increased $10,541 from $7,091 to $17,632, or 148% as compared to the six months ended June 30, 1995. This increase was attributable principally to the non-recurring expenses related to the Spin-off Transaction of $7,933, including employee severance and bonus expenses, the cost of the run-off director's and officer's liability insurance policy for the Trust and the write off of the Trust's deferred acquisition expenses. In addition, a significant portion of the increase of approximately $3,867 in the property operating and maintenance, real estate tax and general and administrative expenses are directly attributable to
the increase in the size of the real estate portfolio due to the acquisition of the Ramco Properties, offset slightly by the decrease related to the two former RPS properties which were spun-off effective May 1, 1996. Interest expense for the six months ended June 30, 1996 has increased $1,740 due to the debt assumed in connection with the Ramco acquisition. Interest expense for the six months ended June 30, 1996 included approximately $140 in additional costs for the period May 1 to May 10, 1996 due to the Closing being effective May 1, 1996 while the Trust contributed the RPS cash on May 10, 1996 thus incurring additional interest expense on the assumed debt. Total expenses for the six months ended June 30, 1995 included an addition to the allowance for loan losses of $3,000, no such allowance was required in the six months ended June 30, 1996.
Three months ended June 30, 1996 compared to three months ended June 30, 1995
Total revenues increased $5,473 or 134% to $9,551 for the three months ended June 30, 1996, as compared with $4,078 for the three months ended June 30, 1995. Minimum rents grew from $1,527 for the three months ended June 30, 1995 to $5,790, an increase of $4,263, or 279%. Percentage rents and recoveries from tenants increased $2,506, or 402%, from $623 in 1995 to $3,129 in 1996. This net increase is primarily attributable to the acquisition of the Ramco Properties effective May 1, 1996. Two months of the Ramco Properties operating results have been included in the three months ended June 30, 1996 as compared to none in the corresponding three months of 1995. In addition, due to the Spin-off Transaction, two properties which were part of the Trust portfolio at June 30, 1995 were spun-off effective May 1, 1996 and, therefore, the revenues for the three months of 1996 only include one month of their activity as compared to three months in 1995. The results also show a decrease in the revenues related to the mortgage loan portfolio which was spun-off as of May 1, 1996.
During the three months ended June 30, 1996 expenses increased $11,766 from $2,140 to $13,906, or 549%, as compared to the three months ended June 30, 1995. This increase was attributable principally to the non-recurring expenses related to the Spin-off Transaction of $6,276, including employee severance and bonus expenses, the cost of the run-off director's and officer's liability insurance policy for the Trust and the write off of the Trust's deferred acquisition expenses. In addition, a significant portion of the increase of approximately $3,750 in the property operating and maintenance, real estate tax and general and administrative expenses are directly attributable to the increase in the size of the real estate portfolio due to the acquisition of the Ramco Properties, offset slightly by a decrease related to the two former RPS properties which were spun-off effective May 1, 1996. Interest expense for the three months ended June 30, 1996 increased $1,740 due to the debt assumed relative to the Ramco Acquisition. Interest expense for the three months included approximately $140 in additional expense for the period May 1 to May 10, 1996 due to the Closing being effective May 1, 1996 while the Trust contributed the RPS cash on May 10, 1996 thus incurring additional interest expense on the assumed debt.
Pro Forma six months ended June 30, 1996 compared to Pro Forma six months ended June 30, 1995
Total revenues increased 4.6%, or $1,074 for the six months ended June 30, 1996, to $24,658 from $23,584 for the six months ended June 30, 1995. The increase was primarily due to a $587 increase in minimum rents, a $101 decrease in percentage rents, and a $520 increase in recoveries from tenants.
Minimum rents increased 4.0%, or $587, to $15,289 for the six months ended June 30, 1996 from $14,702 for the six months ended June 30, 1995. The increase was primarily due to the openings of new anchor tenants at Tel-Twelve Mall, West Oaks I and Jackson Crossing Shopping Center. Percentage rents decreased 10.6%, or $101, to $856 for the six months ended June 30, 1996 from $957 for the six months ended June 30, 1995. The decrease resulted primarily from the conversion of percentage rent to minimum rent due to contractual rent increases. Recoveries from tenants increased 6.7%, or $520, to $8,274 for the six months ended June 30, 1996 from $7,754 for the six months ended June 30, 1995. The increase was primarily due to corresponding increases in recoverable property operating and real estate tax expense. The Company's overall recovery ratio for 1996 and 1995 remained relatively consistent at 97.0% and 96.3%, respectively.
Total expenses increased 52.5%, or $9,287 for the six months ended June 30, 1996, to $26,992 from $17,705 for the six months ended June 30, 1995. The increase was primarily due to a $7,933 increase in Spin-off Transaction and other related expenses, a $477 increase in property operating and real estate tax expense and a $877 increase in general and administrative expenses.
For the six months ended June 30, 1996 the Company incurred $7,933 of Spin-off Transaction and other related expenses for which there was no corresponding costs for the six months ended June 30, 1995. These non-recurring costs were primarily a result of the employee severance and bonus expense, the cost of run-off director's and officer's liability insurance, and the write-off of deferred acquisition costs related to the Transaction. Property operating and real estate tax expenses increased 5.9%, or $477, to $8,527 for the six months ended June 30, 1996 from $8,050 for the six months ended June 30, 1995. The increase was offset primarily by an increase in recoveries from tenants. As noted above, the Company's recovery ratio for the six months ended June 30, 1996 remained consistent with the corresponding 1995 period. General and administrative expenses increased $877, or 57.1%, to $2,412 for the six months ended June 30, 1996 from $1,535 for the six months ended June 30, 1995. The increase in general and administrative expenses was primarily due to a $156 increase in bad debt expense, and a $576 increase in cost reimbursement to Ramco-Gershenson, Inc. The $576 increase was a result of a decrease in revenues of $343, and an increase in expenses of approximately $333. Of the $343 decrease in revenues, $168 pertained to leasing fees and $44 pertained to development fees. Leasing and development fees are not necessarily earned consistently over time since these fees are based upon measurements related to specific transactions. The $333 increase in expenses was primarily attributable to a $180 increase in payroll and related benefits and a $100 increase in equipment leasing costs.
Management generally considers funds from operations ("FFO") to be one measure of financial performance of an equity REIT. It has been presented to assist investors in analyzing the performance of the Company and to provide a relevant basis for comparison to other REITs.
The Company has adopted the most recent National Association of Real Estate Investment Trusts ("NAREIT") definition of FFO, which was effective on January 1, 1996. Under the NAREIT definition, FFO represents income (loss) before minority interest (computed in accordance with generally accepted accounting principles), excluding gains (losses) from debt restructuring and sales of property, plus real estate related depreciation and amortization (excluding amortization of financing costs), and after adjustments for unconsolidated partnerships and joint ventures.
Therefore, FFO does not represent cash generated from operating activities in accordance with generally accepted accounting principles and should not be considered an alternative to net income as an indication of the Company's performance or to cash flows from operating activities as a measure of liquidity of the ability to pay distributions. Furthermore, while net income and cash generated from operating, investing and financing activities determined in accordance with generally accepted accounting principles consider capital expenditures which have been and will be incurred in the future, the calculation of FFO does not.
The following table illustrates the calculation of FFO for the six months ended June 30, 1996 and 1995:
PRO FORMA SIX MONTHS ENDED
JUNE 30,
1996 1995
---- ----
Net Income (Loss) $(3,984) $4,053
Add back
Depreciation and amortization 3,180 3,180
Minority interest in partnerships 1,461 1,353
Non-recurring spin-off costs 7,933
------- ------
Funds from operations $ 8,590 $8,586
======= ======
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ITEM 4-SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
A Special Meeting of Shareholders of the Company was held on April 29, 1996 to consider and vote upon the following matters:
1. A proposal to consummate an acquisition (the "Ramco Acquisition") by the Company of substantially all of the shopping center and retail properties, as well as the management organization and personnel and business operations, of Ramco-Gershenson, Inc. and its affiliates upon the terms and conditions described in the Proxy Statement distributed in connection with the Special Meeting ("First Proposal").
2. A proposal to amend the Company's Declaration of Trust to, among other things, (i) increase certain quorum percentage requirements in connection with meetings of the Board of Trustees, (ii) establish a Nominating Committee and Advisory Committee of the Board of Trustees, (iii) change the Company's name to Ramco-Gershenson Properties Trust, and (iv) authorize the Board of Trustees, on a one-time basis in connection with the Ramco Acquisition, to combine outstanding Shares by way of a 1 for 4 reverse split, provide for the payment of cash in lieu of any fractional interest in a combined Share and establish mechanics to implement any such combination ("Second Proposal").
3. A proposal to approve and ratify a new employee share option plan for certain key employees of the Company and its subsidiaries ("Third Proposal").
The following table shows the number of votes for and against each proposal and the number of votes abstaining with respect to each proposal:
Proposal For Against Abstain - -------- --- ------- ------- First 15,005,720 933,321 348,890 Second 14,909,713 976,088 402,130 Third 12,380,955 3,435,010 471,966 |
There were no broker non-votes with respect to any of the proposals at the Special Meeting.
PART II - OTHER INFORMATION
ITEM 6-EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
3(i) Amendment to Amended and Restated Declaration of Trust of the Company
(formerly known as RPS Realty Trust).
3(ii) Amendment to By-laws of the Company (formerly known as RPS Realty
Trust).
10.1 Pledge Agreement, dated as of May 10, 1996, among the Company, Dennis
Gershenson, Joel Gershenson, Bruce Gershenson, Richard Gershenson,
Michael A. Ward, Michael A. Ward U/T/A dated 2/22/77, as amended, and
the holders of interests in Ramco-Gershenson Properties, L.P., a
Delaware limited partnership.
10.2 Registration Rights Agreement, dated as of May 10, 1996, among the
Company, Dennis Gershenson, Joel Gershenson, Bruce Gershenson, Richard
Gershenson, Michael A. Ward, Michael A. Ward U/T/A dated 2/22/77, as
amended, and each of the Persons set forth on Exhibit A attached
thereto.
10.3 Exchange Rights Agreement, dated as of May 10, 1996, by and among the
Company and each of the Persons whose names are set forth on Exhibit A
attached thereto.
10.4 1996 Share Option Plan of the Company.
10.5 Letter Agreement, dated May 10, 1996, among the Persons and Entities
party to the Amended and Restated Master Agreement, dated as of
December 27, 1995, as amended.
10.6 Promissory Note payable by Atlantic Realty Trust ("Atlantic") in favor
of the Company in the principal face amount of 5,500,000 due November
9, 1997.
10.7 Letter Agreement, dated as of May 10, 1996, by and between Atlantic
and the Company concerning the assumption of certain liabilities by
Atlantic.
10.8 Employment Agreement, dated as of May 10, 1996, between the Company
and Joel Gershenson.
10.9 Employment Agreement, dated as of May 10, 1996, between the Company
and Dennis Gershenson.
10.10 Employment Agreement, dated as of May 10, 1996, between the Company
and Michael A. Ward.
10.11 Employment Agreement, dated as of May 10, 1996, between the Company
and Richard Gershenson.
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10.12 Employment Agreement, dated as of May 10, 1996, between the Company
and Bruce Gershenson.
10.13 Noncompetition Agreement, dated as of May 10, 1996, by and between
Joel Gershenson and the Company.
10.14 Noncompetition Agreement, dated as of May 10, 1996, by and between
Dennis Gershenson and the Company.
10.15 Noncompetition Agreement, dated as of May 10, 1996, by and between
Michael A. Ward and the Company.
10.16 Noncompetition Agreement, dated as of May 10, 1996, by and between
Richard Gershenson and the Company.
10.17 Noncompetition Agreement, dated as of May 10, 1996, by and between
Bruce Gershenson and the Company.
10.18 Letter Agreement, dated April 15, 1996, among the Company and Richard
Smith concerning Mr. Smith's employment by the Company.
27.1 Financial Data Schedule.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
RAMCO-GERSHENSON PROPERTIES TRUST
Date: August 14, 1996 By: /s/ Dennis Gershenson
------------------------------
Dennis Gershenson
President and Trustee
(Chief Executive Officer)
Date: August 14, 1996 By: /s/ Richard Smith
------------------------------
Richard Smith
Chief Financial Officer (Principal
Accounting Officer)
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EXHIBIT INDEX
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- ------- ----------- ------------
3(i) Amendment to Amended and Restated Declaration of Trust of the Company
(formerly known as RPS Realty Trust).
3(ii) Amendment to By-laws of the Company (formerly known as RPS Realty
Trust).
10.1 Pledge Agreement, dated as of May 10, 1996, among the Company, Dennis
Gershenson, Joel Gershenson, Bruce Gershenson, Richard Gershenson,
Michael A. Ward, Michael A. Ward U/T/A dated 2/22/77, as amended, and
the holders of interests in Ramco-Gershenson Properties, L.P., a
Delaware limited partnership.
10.2 Registration Rights Agreement, dated as of May 10, 1996, among the
Company, Dennis Gershenson, Joel Gershenson, Bruce Gershenson, Richard
Gershenson, Michael A. Ward, Michael A. Ward U/T/A dated 2/22/77, as
amended, and each of the Persons set forth on Exhibit A attached
thereto.
10.3 Exchange Rights Agreement, dated as of May 10, 1996, by and among the
Company and each of the Persons whose names are set forth on Exhibit A
attached thereto.
10.4 1996 Share Option Plan of the Company.
10.5 Letter Agreement, dated May 10, 1996, among the Persons and Entities
party to the Amended and Restated Master Agreement, dated as of
December 27, 1995, as amended.
10.6 Promissory Note payable by Atlantic Realty Trust ("Atlantic") in favor
of the Company in the principal face amount of 5,500,000 due November
9, 1997.
10.7 Letter Agreement, dated as of May 10, 1996, by and between Atlantic
and the Company concerning the assumption of certain liabilities by
Atlantic.
10.8 Employment Agreement, dated as of May 10, 1996, between the Company
and Joel Gershenson.
10.9 Employment Agreement, dated as of May 10, 1996, between the Company
and Dennis Gershenson.
10.10 Employment Agreement, dated as of May 10, 1996, between the Company
and Michael A. Ward.
10.11 Employment Agreement, dated as of May 10, 1996, between the Company
and Richard Gershenson.
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SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- ------- ----------- ------------
10.12 Employment Agreement, dated as of May 10, 1996, between the Company
and Bruce Gershenson.
10.13 Noncompetition Agreement, dated as of May 10, 1996, by and between
Joel Gershenson and the Company.
10.14 Noncompetition Agreement, dated as of May 10, 1996, by and between
Dennis Gershenson and the Company.
10.15 Noncompetition Agreement, dated as of May 10, 1996, by and between
Michael A. Ward and the Company.
10.16 Noncompetition Agreement, dated as of May 10, 1996, by and between
Richard Gershenson and the Company.
10.17 Noncompetition Agreement, dated as of May 10, 1996, by and between
Bruce Gershenson and the Company.
10.18 Letter Agreement, dated April 15, 1996, among the Company and Richard
Smith concerning Mr. Smith's employment by the Company.
27.1 Financial Data Schedule.
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EXHIBIT 3(i)
ACQUISITION AMENDMENT
AMENDMENT dated May 10, 1996 to Amended and Restated Declaration of Trust of RPS Realty Trust (the "Trust") dated October 14, 1988 (the "Declaration of Trust");
WHEREAS, Article VIII, Section 2 of the Declaration of Trust provides for procedures governing the amendment of the Declaration of Trust;
WHEREAS, the Trustees have determined that it is in the best interests of the Trust and its shareholders to cause the Trust to increase certain quorum percentage requirements in connection with meetings of the Board of Trustees; establish a Nominating Committee and an Advisory Committee of the Board of Trustees and change the name of the Trust; and
WHEREAS, the Trustees have determined to propose (i) the addition of new Sections to Article III of the Declaration of Trust to provide for the creation of a Nominating Committee and an Advisory Committee of the Board of Trustees, (ii) an amendment to Article IV, Section 8 of the Declaration of Trust to increase certain quorum percentage requirements in connection with meetings of the Board of Trustees and (iii) an amendment to Article I, Section 1 of the Declaration of Trust to change the name of the Trust.
NOW, THEREFORE, the Trustees have adopted the following amendments to the Declaration of Trust, which amendments respectively shall become effective upon approval thereof by the holders of a majority of the Trust's issued and outstanding shares of beneficial interest:
1. Article III of the Declaration of Trust is amended by adding the following Sections to the end thereof (new language appearing in italics):
"SECTION 14. NOMINATING COMMITTEE. The Board of Trustees shall appoint from among its members a Nominating Committee, which shall consist of at least three members, all of whom shall be Independent Trustees, and which shall nominate persons for election to the Board of Trustees. The Nominating Committee will consider nominees recommended by other shareholders in accordance with Article IV, Section 1."
"SECTION 15. ADVISORY COMMITTEE. The Board of Trustees shall appoint an Advisory Committee, which shall consist of three Persons who are not Trustees, and which shall have the power to consult with and advise the Board of Trustees as required. The initial members of the Advisory Committee shall be Michael A. Ward, Richard Gershenson and Bruce Gershenson."
2. The second paragraph of Article IV, Section 1 of the Declaration of Trust is amended as follows (new language appearing in italics):
"The number of Trustees shall be not less than three nor more than fifteen, as fixed from time to time by the Board of Trustees. Unless otherwise fixed by the Board of Trustees or the Shareholders, the number of Trustees constituting the entire Board of Trustees shall be nine.
Except for the initial Trustees during their initial term, the Trustees shall be elected at the annual meeting of Shareholders and each Trustee shall be elected to serve until his successor shall be elected and shall qualify. A Trustee shall be an individual at least 21 years of age who is not under legal disability. A Trustee shall not be required to devote his full business time and effort to the Trust. A Trustee shall qualify as such when he has either signed this Declaration of Trust or agreed in writing to be bound by it. No bond shall be required to secure the performance of a Trustee unless the Trustees so provide or as required by law."
Article IV, Section 8 of the Declaration of Trust is amended as follows (new language appearing in italics):
"SECTION 8. ACTIONS BY TRUSTEES. The trustees shall hold at least four meetings per year. The Trustees may act with or without a meeting. The presence of at least 75% of the Board of Trustees then in office, the majority of which shall be Independent Trustees, shall be necessary to constitute a quorum for the transaction of business, except to adjourn a meeting. Every act or decision done or made by the affirmative vote of at least a majority of the Board of Trustees at a meeting duly held at which a quorum is present shall be regarded as an act of the Board of Trustees unless a greater number is required by law or by the By-Laws or by this Declaration of Trust. If at any time more than one vacancy exists on the Board of Trustees, a quorum of the Board of Trustees shall not exist unless and until such vacancies are filled so that no more than one vacancy exists on the Board of Trustees. Any agreement, deed, mortgage, lease or other instrument of writing executed by any one or more of the Trustees or by any one or more authorized persons shall be valid and binding upon the Trustees and upon the Trust when authorized by action of the Trustees."
Article I, Section 1 of the Declaration of Trust is amended as follows (new language appearing in italics):
"SECTION 1. NAME. The name of Trust created by this Declaration of Trust shall be "Ramco-Gershenson Properties Trust" and so far as may be practicable, the Trustees of the Trust ("Trustees" or the "Board of Trustees") shall conduct the Trust's activities, execute all documents and sue or be sued under the name, which name (and the word "Trust" whenever used in this Declaration of Trust, except where the context otherwise requires) shall refer to the Trustees in their capacity as Trustees and not individually or personally, and shall not refer to the officers or Shareholders of the Trust or the agents or employees of the Trust or of such Trustees. Should the Trustees determine that the use of such name is not practicable, legal or convenient, they may use such other designation or they may adopt such other name of the Trust as they deem proper and the Trust may hold property and conduct its activities under such designation or name, subject, however, to the limitations contained in the next succeeding paragraphs."
Article VII, Section 1 of the Declaration of Trust is amended as follows (new language appearing in italics):
"SECTION 1. SHARES. The units into which the beneficial interest in the Trust will be divided shall be designated as Shares, which Shares shall be of one or more classes and shall have a par value of $.10 per Share. The certificates evidencing the Shares shall be in such forms as the Board of Trustees may prescribe, signed by, or in the name of the Trust by, the Chairman of the Board or the President, and by the Secretary or the Treasurer. Where a certificate is
countersigned by a transfer agent and/or registrar other than the Trust or its employees, the signatures of such officers may be facsimiles. There shall be no limit on the number of Shares to be issued. The Shares may be issued for such consideration as the Trustees shall determine, including upon the conversion of convertible debt, or by way of share dividend or share split in the discretion of the Trustees. In addition to the issuance of Shares by way of share dividend or share split, the Trustees may combine outstanding Shares by way of reverse share split and provide for the payment of cash in lieu of any fractional interest in a combined Share; and the mechanics authorized by the Trustees to implement any such combination shall be binding upon all Shareholders, holders of convertible debt, optionees and others with any interest in Shares. Shares reacquired by the Trust may be cancelled by action of the Trustees. All Shares shall be fully paid and non-assessable by or on behalf of the Trust upon receipt of full consideration for which they have been issued or without additional consideration if issued by way of share dividend, share split, or upon the conversion of convertible debt. The Shares shall not entitle the holder to preference, preemptive, appraisal, conversion, exchange or cumulative voting rights of any kind."
Except as so amended, the Declaration of Trust shall remain unmodified and in full force and effect.
IN WITNESS WHEREOF, the undersigned, being not less than a majority of the Trustees of RPS REALTY TRUST, have each executed this Amendment to the Amended and Restated Declaration of Trust as of May 10, 1996.
/s/ Joel M. Pashcow ---------------------------------- Joel M. Pashcow /s/ Herbert Liechtung ---------------------------------- Herbert Liechtung /s/ Arthur H. Goldberg ---------------------------------- Arthur H. Goldberg /s/ Edwin J. Glickman ---------------------------------- Edwin J. Glickman /s/ Alfred D. Stalford ---------------------------------- Alfred D. Stalford /s/ Samuel M. Eisenstat ---------------------------------- Samuel M. Eisenstat /s/ Edward Blumenfeld ---------------------------------- Edward Blumenfeld /s/ William A. Rosoff ---------------------------------- William A. Rosoff /s/ Stephen R. Blank ---------------------------------- Stephen R. Blank /s/ Robert A. Meister ---------------------------------- Robert A. Meister |
EXHIBIT 3(ii)
AMENDMENT TO THE BY-LAWS
OF
RPS REALTY TRUST
(Adopted Effective as of May 10, 1996)
This Amendment to the By-Laws is adopted by the Trustees of RPS Realty
Trust (the "Trust") under an Amended and Restated Declaration of Trust dated
October 14, 1988, as amended on May 10, 1996 (as the same may be further amended
from time to time, the "Declaration of Trust") as contemplated by Article IV,
Section 3(c) of the Declaration of Trust. The provisions of this Amendment to
the By-Laws are intended to implement the provisions of the Declaration of
Trust, but are in all respects subject to the Declaration of Trust. Terms not
otherwise defined in these By-Laws shall have the meanings ascribed to them in
the Declaration of Trust.
1. Article I, Section 5 of the By-Laws is amended as follows (new language appearing in italics):
"SECTION 5. QUORUM. The presence of at least 75% of the Board of Trustees then in office, the majority of which shall be Independent Trustees, shall be necessary to constitute a quorum for the transaction of business, except to adjourn a meeting. Every act or decision done or made by the affirmative vote of at least a majority of the Board of Trustees at a meeting duly held at which a quorum is present shall be regarded as an act of the Board of Trustees unless a greater number is required by law or by the Amended and Restated Declaration of Trust of the Trust or by these By-Laws. If at any time more than one vacancy exists on the Board of Trustees, a quorum of the Board of Trustees shall not exist unless and until such vacancies are filled so that no more than one vacancy exists on the Board of Trustees. Less than a quorum may adjourn any meeting from time to time and the meeting may be held as adjourned without further notice."
2. Article I of the By-Laws is amended by adding the following Sections to the end thereof (new language appearing in italics):
"SECTION 11. NOMINATING COMMITTEE. The duties of the Nominating Committee shall be (i) to nominate persons for election to the Board of Trustees and (ii) to consider nominees recommended by other shareholders in accordance with Article IV, Section 1 of the Declaration of the Trust of the Trust."
"SECTION 12. ADVISORY COMMITTEE. The Advisory Committee shall have the power to consult with and advise the Board of Trustees as required."
(End of Amendment)
EXHIBIT 10.1
PLEDGE AGREEMENT
PLEDGE AGREEMENT ("AGREEMENT") dated as of May 10, 1996 among Ramco-Gershenson Properties Trust, a Massachusetts business trust formerly known as RPS Realty Trust (the "TRUST"), Dennis Gershenson, Joel Gershenson, Bruce Gershenson, Richard Gershenson, Michael A. Ward and Michael A. Ward U/T/A dated 2/22/77, as amended (collectively, the "RAMCO PRINCIPALS") and the holders of interests in Ramco-Gershenson Properties, L.P., a Delaware limited partnership, who are set forth on Exhibit A hereto (collectively, the "HOLDERS").
Reference is made to the Amended and Restated Master Agreement, dated as of December 27, 1996, as amended by the First Amendment to Amended and Restated Master Agreement, dated as of March 19, 1996 (as amended, the "MASTER AGREEMENT"), among the Trust, Ramco-Gershenson, Inc. ("RAMCO"), the Ramco Principals, the Ramco Contributing Parties (as defined therein) and Ramco-Gershenson Properties, L.P., a Delaware limited partnership (the "OPERATING PARTNERSHIP"). Capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings ascribed to them in the Master Agreement.
RECITALS:
A. The Trust and the Holders are entering into this Agreement in connection with the transactions (the "RAMCO TRANSACTION") effectuated on this day pursuant to which the Trust, the Ramco Contributing Parties and the Ramco Principals contributed cash, certain stock in Ramco, certain partnership interests and certain shopping center properties to the Operating Partnership.
B. As a condition to the Ramco Transaction, the Ramco Principals and the Holders have agreed to execute and deliver to the Trust this Agreement.
Accordingly, the parties hereby agree as follows:
Section 1. The Pledge.
(a) As collateral security for the full and timely performance of the
obligations and liabilities of the Ramco Principals contained in the Master
Agreement and each Ramco Agreement including, without limitation, the
indemnification obligations set forth in Section 7.4 of the Master Agreement and
Section 20 of each Ramco Agreement (the "SECURED OBLIGATIONS"), each Ramco
Principal and each Holder, as the case may be, hereby transfers, conveys,
pledges, hypothecates and delivers to the Trust and its successors and assigns,
and grants to the Trust and its successors and assigns a security interest in,
the following property (collectively referred to herein as the "PLEDGED
COLLATERAL"):
(i) the number of units of limited partnership interest in the Operating Partnership ("OP UNITS") issued under the Partnership Agreement and owned by each Ramco Principal and Holder on the date hereof, but only as set forth on Exhibit A, and each additional
OP Unit issued or credited to any Ramco Principal or Holder from time to time or otherwise acquired by any Ramco Principal or Holder from time to time (collectively, the "RP PLEDGED OP UNITS");
(ii) the number of shares of beneficial interest of the Trust, par value $.10 per share ("SHARES"), owned by each Ramco Principal on the date hereof, but only as set forth on Exhibit B, and each additional Share issued to, purchased or otherwise acquired by any Ramco Principal or Holder from time to time, including, without limitation, any Shares acquired by any Ramco Principal or Holder as a result of any exchange of OP Units for Shares (collectively the "RP PLEDGED SHARES");
(iii) the limited partnership interests in the Holders owned by the Ramco Principals on the date hereof, but only as set forth on Exhibit C, and each additional partnership interest (whether general or limited) in such Holders issued or credited to any Ramco Principal from time to time or otherwise acquired by any Ramco Principal from time to time (collectively, the "PLEDGED LP INTERESTS");
(iv) the general and limited partnership interests in the general partners of the Holders that are partnerships (the "PARTNERSHIP GP ENTITIES") owned by the Ramco Principals on the date hereof, but only as set forth on Exhibit D, and each additional partnership interest (whether general or limited) in the Partnership GP Entities issued or credited to any Ramco Principal from time to time or otherwise acquired by any Ramco Principal from time to time (collectively, the "PLEDGED PARTNERSHIP GP INTERESTS");
(v) the Shares of stock (irrespective of class) in the general partners that are corporations (the "CORPORATE GP ENTITIES") owned by the Ramco Principals on the date hereof, but only as set forth on Exhibit E, and each additional Share of stock (irrespective of class) in the Corporate GP Entities issued to, purchased or otherwise acquired by any Ramco Principal from time to time (collectively, the "PLEDGED CORPORATE GP STOCK");
(vi) with respect to each Holder, the number of OP Units and Shares owned by such Holder on the date hereof, but only as set forth on Exhibits A and B, multiplied by a fraction, the numerator of which is the number of such OP Units and Shares allocated directly or indirectly to the Ramco Principals and their
respective Affiliates pursuant to the partnership agreement of such Holder (expressed as a decimal fraction) and the denominator of which is the total number of OP Units and Shares allocated to such Holder (the "APPLICABLE PERCENTAGE") as set forth on Exhibit F and each additional OP Unit or Share issued to, purchased or acquired by such Holder multiplied by, with respect to each Holder, the Applicable Percentage (collectively, the "RCP PLEDGED UNITS AND SHARES"), provided, however, if after the date hereof the aggregate direct or indirect percentage ownership interest of the Ramco Principals in any Holder shall increase from the percentage existing on the date hereof, the Applicable Percentage with respect to such Holder shall equal such greater percentage;
(vii) all payments due or to become due to each pledgor arising out of, as a result of or in connection with such pledgor's ownership of the RP Pledged OP Units, the RP Pledged Shares, the Pledged LP Interests, the Pledged Partnership GP Interests, the Pledged Corporate GP Stock, and the RCP Pledged Units and Shares, whether as dividends, distributions of cash or property or otherwise (collectively, the "DISTRIBUTIONS") and all of such pledgor's rights, whether now existing or hereafter arising or acquired, to exercise all voting, consensual and other powers of ownership pertaining to such pledgor's ownership of the above items of Pledged Collateral (including, without limitation, Pledgor's rights as owner of such items of Pledged Collateral to make determinations, to exercise any election (including, without limitation, election of remedies) or option, to give or receive any notice, consent, amendment, waiver or approval); and
(viii) all proceeds of any and all of the foregoing and all increases, substitutions, replacements, additions, and accessions thereto.
(b) Notwithstanding anything herein or in the Master Agreement or any Ramco Agreement to the contrary, the Ramco Principals and the Holders hereby acknowledge and agree that (a) it is not (and at no time will be) necessary for the Trust, in order to enforce any of its rights and remedies in respect of the Secured Obligations, to first institute or exhaust the Trust's rights and remedies against any Ramco Principal, any Holder or against any of the Pledged Collateral, in each case, pursuant to this Agreement, and (b) any delay in exercising, failure to exercise, or non-exercise (or partial exercise), from time to time, by the Trust of any rights or remedies hereunder (or to insist upon strict performance) in any one or more instances shall not constitute a waiver thereof (or preclude full exercise or insistence upon strict performance thereof)
in that or any other instance, and any single exercise of the Trust's right or remedies hereunder in any one or more instances shall not preclude full exercise in any other instance.
Section 2. Dividends and Other Distributions. So long as no breach of the Secured Obligations shall have occurred and be continuing (an "EVENT OF DEFAULT"), all cash distributions and dividends payable in respect of the Pledged Collateral shall be paid to the relevant pledgor; provided, that all cash distributions and dividends payable in respect of the Pledged Collateral which are determined by the Trust in its reasonable discretion to represent in whole or in part an extraordinary, liquidating or other distribution in return of capital shall be paid, to the extent so determined to represent an extraordinary, liquidating or other distribution in return of capital, to the Trust and retained by it in a separate interest bearing account as part of the Pledged Collateral. The Trust shall also be entitled to receive directly, and to retain as part of the Pledged Collateral to be held and applied in the manner set forth in this Agreement:
(i) all additional stock, partnership interests or other securities or property (other than cash) paid or distributed by way of dividend or otherwise in respect of the Pledged Collateral;
(ii) all additional stock, partnership interests or other securities or property (including cash) paid or distributed in respect of the Pledged Collateral by way of stock-split, spin-off, split-up, reclassification, combination of shares or interests or similar rearrangement; and
(iii) all additional stock, partnership interests or other securities or property (including cash) which may be paid in respect of the Pledged Collateral by reason of any consolidation, merger, exchange of stock or interests, conveyance of assets, liquidation or similar corporate or partnership reorganization.
Section 3. Voting Power. So long as no Event of Default exists, the pledgors shall be entitled to exercise all voting, consensual and other powers of ownership pertaining to the Pledged Collateral, provided that no vote shall be cast nor any approval, consent, waiver or ratification given, nor any power pertaining to the Pledged Collateral exercised, nor any other action taken, which would violate or be inconsistent with the terms of this Agreement. If an Event of Default occurs and is continuing, the Trust shall have the sole and exclusive right to
exercise all voting, consensual and other powers of ownership pertaining to the Pledged Collateral.
Section 4. Events of Default and Remedies.
(a) During any period in which an Event of Default shall have occurred and be continuing, the Trust shall have the following rights regarding the Pledged Collateral: (i) the Trust shall have all of the rights and remedies with respect to the Pledged Collateral of a secured party under the Uniform Commercial Code, as is in effect from time to time in the State of New York, and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted, including, without limitation, the right, to the fullest extent permitted by law, to exercise all voting, and other powers of ownership pertaining to the Pledged Collateral as if the Trust were the sole and absolute owner thereof (and the pledgors under this Agreement agree to take all reasonable actions as may be appropriate to give effect to such rights); (ii) the Trust in its discretion may, in its name or the name of the pledgors or otherwise, demand, sue for, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Pledged Collateral, but shall be under no obligation to do so; and (iii) the Trust may, upon 10 business days' written notice to the pledgors under this Agreement of the time and place, sell, assign or otherwise dispose of all or any part of the Pledged Collateral, at such place or places as the Trust deems best, and for cash, credit or future delivery (without thereby assuming any credit risk), without demand or performance or further notice of intention to effect such disposition or the time or place thereof (except such notices which are required by applicable statute and cannot be waived); and, further, the Trust or anyone else who may be the purchaser, the lessee, transferee or assignee of any or all of the Pledged Collateral so disposed of shall thereafter hold the same absolutely free from any claim or right or whatsoever kind, including any right or equity of redemption (statutory or otherwise).
The proceeds of each collection, sale or other disposition under this
Section shall be applied in accordance with Section 9 hereof.
The pledgors recognize that, by reason of certain prohibitions contained in the Securities Act of 1933, as amended (the "SECURITIES ACT"), and applicable state securities laws ("BLUE SKY LAWS"), the Trust may be compelled, with respect to any sale of all or any part of the Pledged Collateral, to make sales of such Pledged Collateral to purchasers who have agreed, among other things, to acquire the Pledged Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The pledgors acknowledge that such sales may be at prices and on terms less favorable to the Trust than those obtainable through a public sale without such restrictions, and notwithstanding such circumstances, agree that any such sale shall be deemed to have been made in a commercially reasonable manner. The pledgors acknowledge and agree that, subject to compliance with the Securities Act and Blue Sky Laws, under no circumstances will the Trust be required to register any of the Pledged Securities under the Securities Act or any Blue Sky Laws.
The pledgors hereby appoint the Trust, effective during the continuance of an Event of Default, as the pledgors' attorney-in-fact, with full power of substitution for the purposes specified in, or contemplated by, this Agreement. Such appointment is irrevocable and coupled with an interest. As attorney-in-fact, the Trust may (in addition to the actions specified in other provisions of this Agreement), in the name, place and stead of any pledgor, make and execute all conveyances, assignments and transfers of the Pledged Collateral sold pursuant hereto, and such pledgor hereby ratifys and confirms all that the Trust, as attorney-in-fact, shall do by virtue hereof. Nevertheless, such pledgor shall, if so requested by the Trust, ratify and confirm any sale or sales by executing and delivering to the Trust, or to such purchaser or purchasers, all such instruments as may, in the judgment of the Trust, be advisable for the purpose.
Section 5. Certain Representations and Warranties. The Ramco Principals, jointly and severally, represent and warrant to the Trust as follows:
(i) the respective pledgors are the legal, record and beneficial owners of, and have good and marketable title to, the Pledged Collateral, subject to pledge, claim, lien, security interest, charge, option or other encumbrance (a "LIEN") except for (A) the security interest created by this Agreement and (B) restrictions on transfer under the Securities Act and Blue Sky Laws;
(ii) the Pledged Collateral has been duly and validly issued and is fully paid and non-assessable and such Pledged Collateral is not subject to any options to purchase or similar rights except those in favor of the Operating Partnership or the Trust;
(iii) assuming the authority of pledgors to execute, deliver and perform their obligations under this Agreement, this Agreement creates, in favor of the Trust and as security for the Secured Obligations, a valid and enforceable perfected lien on the Pledged Collateral;
(iv) to the best of their knowledge after consultation with counsel, no consent, filing, recording or registration, other than the filing of Uniform Commercial Code financing statements, is required to perfect the lien purported to be created by this Agreement against the Pledged Collateral;
(v) the Pledged Collateral represents all of the Ramco Principals direct and indirect interests in the Trust, the Operating Partnership and the Holders;
(vi) the execution, delivery and performance of this Agreement will not (a) violate any provision of any applicable law or regulation of any Governmental Body, violate any provision of any mortgage, indenture, lease, contract, pledge or other instrument or undertaking to which any pledgor is a party or which purports to be binding upon any pledgor or any of its assets, except for any partnership agreement or agreement of limited partnership of any Holder, as applicable, or (b) result in the creation or
imposition of any Lien on any assets of any pledgor except the Lien created by this Agreement;
(vii) the principal place of business of such pledgor (or residence in the event such pledgor is an individual) is as set forth in Exhibit F annexed hereto and made a part hereof).
(viii) no Ramco Principal is a party to any shareholders' agreement relating to his or its ownership of the Pledged Corporate GP Stock, except for the shareholders' agreements between the Ramco Principals in Ramco Jackson, Inc. ("Ramco Jackson") and Ramco Oak Brook, Inc., both of which are in the same form as the Shareholders Agreement, dated February 27, 1990, between Ramco Jackson and each of the Ramco Principals (together, the "Shareholder Agreements");
(ix) each party to the Shareholder Agreements has consented to the pledge by the Ramco Principals of the Pledged Corporate GP Stock and agreed that, to the extent such stock is foreclosed on and acquired by the Trust pursuant to this Agreement, that such stock and the Trust shall not be bound by or subject to any of the Shareholder Agreements;
(x) the data and other information set forth on Exhibits A through G hereto are true, correct and complete in all respects; and
(xi) in connection with the incurrence by an affiliate of the Ramco Principals of certain recourse indebtedness on or prior to the date hereof (with respect to which he Ramco Principals are, jointly and severally, personally liable), all interests owned, directly or indirectly, by the Ramco Principals in the Holders set forth on Exhibit G hereto, together with the number of OP Units owned by such Holders, are, on or prior to the date hereof, subject to an existing pledge in favor of NBD Bank in connection with the indebtedness incurred by an affiliate of the Ramco Principals as described above.
Section 6. Covenants of the Pledgors. The Ramco Principals, jointly and severally, covenant and agree with the Trust as follows:
(i) they will, or they will cause, the Pledgors to, defend the Trust's right, title, claim of possession and Lien in and to the Pledged Collateral against the claims and demands of all Persons;
(ii) they will pay and discharge all Liens, charges, claims, taxes and other governmental charges, and all contractual obligations requiring the payment of money, before such become overdue, that may affect the Pledged Collateral or any part thereof, unless (but only to the extent that) such payment is being contested in good faith and in accordance with law;
(iii) they shall not, without the prior written consent of the Trust (which consent shall not be unreasonably withheld), amend or modify, or consent to the amendment or modification of, the organizational documents of Holders, the Partnership GP Entities and the Corporate GP Entities;
(iv) they will, or they will cause each pledgor to, join with the Trust in executing and file and refile under the Uniform Commercial Code such financing statements, continuation statements and other documents in such offices as the Trust may reasonably deem necessary or desirable and wherever required or permitted by law in order to perfect and preserve the Trust's security interest in the Pledged Collateral and hereby authorizes the Trust to file financing statements and amendments thereto relative to all or any part of the Pledged Collateral without the signature of such pledgor where permitted by law, and agrees to do such further acts and things and to make, execute and deliver to the Trust such additional conveyances, assignments, agreements, instruments and financing statements as the Trust may reasonably require or deem advisable to carry into effect the purposes of this Agreement or to further assure and confirm unto the Trust its rights, powers and remedies hereunder, and if any pledgor shall fail to execute any such additional conveyances, assignments, agreements, instruments or financing statements, the Trust, as attorney-in-fact for such pledgor may in the name, place and stead of such pledgor, make, execute and deliver any of the foregoing; and
(v) notify the Trust in writing forty-five (45) business days prior to the date any pledgor changes its principal place of business or principal residence in the event such pledgor is an individual, which notice shall set forth the full and complete new principal place of business or principal residence, as the case may be, of such pledgor.
Section 7. Marshalling. The Trust shall not be required to marshall any present or future security for (including, but not limited to this Agreement or any collateral pledged hereunder), or guaranties of, the Secured Obligations of any pledgor, or to resort to such security or guaranties in any particular order; and all of its rights hereunder and in respect of such security and guaranties shall be cumulative and in addition to all other rights hereunder, however existing or arising. To the extent that any pledgor may lawfully do so, each pledgor hereby agrees not to invoke any law relating to the marshalling of collateral which may cause delay and/or impede the enforcement of any of the Trust's rights under this Agreement, or any other instrument evidencing any of the obligations under this Agreement, the Master Agreement or any Ramco Agreement or under which any of such obligations is outstanding or by which any of such obligations is secured or guarantied, and to the extent that such pledgor may lawfully do so, each pledgor hereby irrevocably waives the benefit of all such laws.
Section 8. Deficiency. If the proceeds of sale, collection or realization of or upon the Pledged Collateral pursuant to Section 4 hereof are insufficient to cover the cost and expenses of such realization and the payment in full of the Secured Obligations, the pledgor shall not be liable for any amounts which exceed the Pledged Collateral. The Trust may not collect from the
Pledged Collateral more than the Secured Obligations plus costs and expenses of realizing on such Pledged Collateral.
Section 9. The Pledgors' Obligations Not Affected. The obligations of each pledgor hereunder shall remain in full force and effect and shall not be impaired by:
(a) any bankruptcy or insolvency of any other pledgor;
(b) any amendment to or modification of any instrument (other than this Agreement) securing any of the Secured Obligations;
(c) the taking of additional security for, or any guaranty of, any of the Secured Obligations or the release or discharge or termination of any security or guaranty for any of the Secured Obligations; or
(d) the lack of enforceability of any of the Secured Obligations against any pledgor or any other person.
Section 10. Application of Proceeds. Except as otherwise expressly provided in Section 8 herein, the proceeds of any collection, sale or other realization of any or any part of the Pledged Collateral pursuant hereto shall be applied by the Trust: first, to the payment of the costs and expenses of such collection, sale or other realization, including reasonable out-of-pocket costs and expenses of the Trust and the reasonable fees and expenses of its agents and counsel; second, to the payment in full of the Secured Obligations; and finally, to the payment to the pledgors (in accordance with their interests in the Pledged Collateral), or their heirs, executives, administrators, successors or assigns, or as a court of competent jurisdiction may direct, of any surplus then remaining.
As used in this Section 10, "THE PROCEEDS" of the Pledged Collateral shall mean cash, securities and other property realized.
Section 11. Perfection. Each Ramco Principal shall deliver to the Trust
(i) to the extent that the Pledged Collateral are certificated securities, the
certificates representing the Pledged Collateral accompanied by undated stock
or other similar powers duly endorsed in blank, (ii) such Uniform Commercial
Code financing statements, executed by the applicable pledgor and in a form
ready for filing, as may be necessary or desirable to perfect the first
priority security interests in the Pledged Collateral granted to the Trust
pursuant to this Agreement and (iii) satisfactory evidence that all other
filings, recordings, registrations and other actions the Trust deems necessary
or desirable to establish, preserve and perfect the security interests granted
to the Trust pursuant to this Agreement shall have been made.
Section 12. Transfer, Etc. Without the prior written consent of the Trust, the pledgors will not sell, assign, transfer or otherwise dispose of, grant any option with respect to, or pledge
or grant any security interest in or otherwise encumber any of the Pledged Collateral or any interest therein, except for the pledge provided for in this Agreement.
Section 13. Termination. The security interest in the Pledged Collateral granted to the Trust as security for the Secured Obligations shall terminate on April 30, 1997 (the "TERMINATION DATE"), except as to Pledged Collateral having a value (as determined in good faith by the Trust) of not more than 110% of any amount claimed which the Trust gives written notice in accordance with Section 7.2 of the Master Agreement or Section 19 of the Ramco Agreements, as applicable (a "PENDING CLAIM"). If a Pending Claim exists on the Termination Date, the security interest in the remaining retained Pledged Collateral granted to the Trust as security for the Secured Obligations shall terminate on such date (the "PENDING CLAIM TERMINATION DATE") as when (a) the Ramco Principals' obligation relating to the Pending Claim has been satisfied or (b) the Pending Claim has been finally resolved (by agreement of the Trust and the Ramco Principals or a final judgment of a court of competent jurisdiction). On the applicable termination date provided for in this paragraph, the Trust shall forthwith cause to be assigned, transferred and delivered, against receipt, any remaining Pledged Collateral and any money received in respect of, to or in the order of the applicable pledges.
Section 14. Further Assurances. The pledgors will from time to time execute and deliver to the Trust all such other and further instruments and documents and take or cause to be taken all such other and further actions as the Trust may reasonably request in order to effect and confirm more securely in the Trust all rights contemplated in this Agreement.
Section 15. Expenses. The Ramco Principals agree to pay to the Trust all reasonable out-of-pocket expenses of the Trust (including reasonable expenses for legal services) of, or incident to the enforcement of, any provisions of this Agreement.
Section 16. Miscellaneous.
(a) Waiver, etc. No act, failure or delay by the Trust shall constitute a waiver of its rights, powers or remedies hereunder or otherwise. No single or partial waiver by the Trust or any of its agents of any default or right or remedy which it may have shall constitute a waiver of any other default, right or remedy or of the same default, right or remedy on a future occasion. The pledgors hereby waive presentment, notice of dishonor and protest of all instruments and any and all other notices and demands whatsoever (except as expressly provided herein). The remedies herein are cumulative and are not exclusive of any other remedies which may be provided by law.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the conflicts of law principles thereof.
(c) All communications herein provided shall be in writing and shall be sufficient if sent by United States mail, registered or certified, delivered by messenger, overnight courier, telex or telefax, addressed as follows:
If to the Trust:
Ramco-Gershenson Properties Trust
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
Telecopier No.: (810) 350-9925 Attention: Chairman
with a copy to:
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Telecopier No.: (212) 856-7812
Attention: Peter M. Fass, Esq.
If to any pledgor:
Ramco-Gershenson Properties Trust
27600 Northwestern Hwy
Suite 200
Southfield, Michigan 48034
Telecopier No.: (810) 350-9925
Attention: Mr. Dennis Gershenson
with a copy to:
Honigman Miller Schwartz and Cohn
2290 First National Building
Detroit, Michigan 48226-3583
Telecopier No.: (313) 962-0176
Attention: Richard Burstein, Esq.
or such other addresses where any party may receive any such communication or notice as may be designated by written notice to the other parties. Any notice given pursuant to this Section to effect a change of address shall be effective when received.
(d) Successors and Assigns. This Agreement and all obligations of the pledgors herein shall be binding upon the heirs, executives, successors and assigns of the pledgors and
shall, together with the rights and remedies of the Trust, inure to the benefit of the Trust and its successors and assigns.
(e) Severability. If any term in this Agreement shall be held to be invalid or illegal or unenforceable in any respect, the validity of all other terms hereof shall be in no way affected thereby, and this Agreement shall be construed and be enforceable as if such invalid, illegal or unenforceable term had not been included herein.
(f) Exclusive Agreement. This Agreement supersedes all prior agreements among the parties with respect to its subject matter, including, without limitation, Section 20 of any Ramco Agreement, and is intended as a complete and exclusive statement of the terms of the Agreement among the parties.
(g) Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any other parties hereto may execute this Agreement by signing any such counterparts.
IN WITNESS WHEREOF, the Ramco Principals, the Trust and the Holders have caused this Agreement to be duly executed as of the date first above written.
TRUST
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson ------------------------------ Name: Dennis Gershenson Title: Chief Executive Officer |
RAMCO PRINCIPALS
/s/ Dennis Gershenson ---------------------------------- Dennis Gershenson /s/ Joel Gershenson ---------------------------------- Joel Gershenson /s/ Bruce Gershenson ---------------------------------- Bruce Gershenson /s/ Richard Gershenson ---------------------------------- Richard Gershenson /s/ Michael A. Ward ---------------------------------- Michael A. Ward |
(signature pages continued)
MICHAEL A. WARD U/T/A DATED
2/22/77, AS AMENDED
By: /s/ Michael A. Ward ------------------------------------- Michael A. Ward as trustee U/T/A dated 2/22/77, as amended |
HOLDERS (other than Joel Gershenson, Dennis Gershenson, Bruce Gershenson, Richard Gershenson and Michael A. Ward U/T/A dated 2/22/77, as amended)
WEST OAKS I
WEST OAKS DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
----------------------------------------
Dennis Gershenson, Partner
|
JACKSON CROSSING
RAMCO JACKSON ASSOCIATES LIMITED
PARTNERSHIP,
a Michigan limited partnership
By: RAMCO JACKSON, INC.,
a Michigan corporation,
its General Partner
By: /s/ Dennis Gershenson
-----------------------------------
Dennis Gershenson
Vice President
|
(signature pages continued)
TEL-TWELVE SHOPPING CENTER
TEL-TWELVE MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: R.G. TEL-TWELVE CO.,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
----------------------------
Dennis Gershenson, Partner
|
CLINTON VALLEY MALL
STERLING MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO CONSUMERS MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership,
its General Partner
By: /s/ Dennis Gershenson ------------------------------ Dennis Gershenson, a General Partner |
OAK BROOK SQUARE
RAMCO OAK BROOK SQUARE ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO OAK BROOK SQUARE, INC.,
a Michigan corporation,
general partner
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Vice President
|
(signature pages continued)
FRASER TOWN CENTER
RAMCO FRASER DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------
Dennis Gershenson, Partner
|
EDGEWOOD TOWN CENTER
RAMCO LANSING ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
|
NORTH TOWNE OFFICE MAX
RAMCO LEWIS ALEXIS ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
|
NAPLES TOWNE CENTER
RAMCO SOUTH NAPLES DEVELOPMENT,
a Florida general partnership
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
|
SPRING MEADOWS SHOPPING CENTER
RAMCO SPRING MEADOWS ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
-----------------------------------
Dennis Gershenson, Partner
|
(signature pages continued)
TROY TOWNE CENTER
RAMCO SINGER ASSOCIATES LIMITED
PARTNERSHIP, an Ohio limited partnership
By: RAMCO TROY ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
|
WEST ALLIS TOWN CENTER
WEST ALLIS SHOPPING CENTER ASSOCIATES,
a Wisconsin general partnership
By: RAMCO ALLIS DEVELOPMENT
COMPANY, its Partner
By: /s/ Dennis Gershenson
------------------------------
Dennis Gershenson, Partner
|
WEST OAKS II
RAMCO NOVI DEVELOPMENT ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO NOVI DEVELOPMENT COMPANY,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
-------------------------------
Dennis Gershenson, Partner
|
CLINTON VALLEY STRIP
KMW STERLING DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson, Partner
|
(signature pages continued)
KENTWOOD TOWNE CENTER
RAMCO KENTWOOD ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
|
FERNDALE PLAZA
MICHIGAN SHOPPING CENTER VENTURE II
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO L & W PARTNERS,
a Michigan co-partnership,
its general partner
By: RAMCO GP,
a Michigan co-partnership,
its partner
By: /s/ Dennis Gershenson
-------------------------------
Dennis Gershenson, Partner
|
(End of signature pages)
EXHIBIT A TO PLEDGE AGREEMENT
The number of OP Units issued under the Partnership Agreement owned by each Ramco Principal, directly or indirectly through their general and/or limited partnership interest in a Holder, on the date hereof and which are subject to this Agreement:
Joel Gershenson 2
Dennis Gershenson 2
Richard Gershenson 2
Bruce Gershenson 2
Michael A. Ward 0
Michael A. Ward, Trustee U/T/A
dated 2/22/77, as amended 2
West Oaks Development Company 71,392
Ramco Jackson Associates Limited Partnership 10
Tel-Twelve Mall Associates Limited Partnership 368,154
Sterling Mall Associates Limited Partnership 9,316
Ramco Oak Brook Square Associates Limited Partnership 739
Ramco Fraser Development Company 74,972
Ramco Lansing Associates 62,295
Ramco Lewis Alexis Associates 10,914
Ramco South Naples Development 69,565
Ramco Spring Meadows Associates 3,325
Ramco Singer Associates Limited Partnership 60,548
West Allis Shopping Center Associates 89,735
Ramco Novi Development Associates Limited Partnership 110,414
KMW Sterling Development Company 64,575
Ramco Kentwood Associates 1,871
Michigan Shopping Center Venture II Limited Partnership 0
=======
Total 997,835
|
EXHIBIT B TO PLEDGE AGREEMENT
|
The number of Shares of beneficial interests of the Trust owned by each Ramco Principal on the date hereof:
Joel Gershenson 0 Dennis Gershenson 0 Richard Gershenson 0 Bruce Gershenson 0 Michael A. Ward 0 Michael A. Ward, Trustee U/T/A dated 2/22/77, as amended 0 |
EXHIBIT C TO PLEDGE AGREEMENT
Limited Partnership Interests in the Holders owned by each of the Ramco Principals on the date hereof:
Percentage
Tel Twelve Mall Associates Limited Partnership 51.21
Ramco Fraser Development Company N/A - general
partnership
Ramco South Naples Development N/A - general
partnership
Ramco Singer Associates Limited Partnership 0
West Allis Shopping Center Associates N/A - general
partnership
KMW Sterling Development Company N/A - general
partnership
Ramco Kentwood Associates N/A general partnership
Ramco Oak Brook Square Associates Limited Partnership 96.04
Sterling Mall Associates Limited Partnership 0
West Oaks Development Company N/A - general
partnership
Ramco Novi Development Associates Limited Partnership 0
Ramco Spring Meadows Associates N/A - general
partnership
Ramco Jackson Associates Limited Partnership 100
Ramco Lansing Associates N/A - general
partnership
Ramco Lewis Alexis Associates N/A - general
partnership
Michigan Shopping Center Venture II Limited 0
Partnership
|
Each Ramco Principal owns 20% of the interests held by the Ramco Principals in the aggregate.
EXHIBIT D TO PLEDGE AGREEMENT
Percentage of Partnership Interests in the General Partners of the Holders that are Limited Partnerships owned by each of the Ramco Principals on the date hereof, and Percentage of Partnership Interests in the General Partnerships which are Holders owned by each of the Ramco Principals on the date hereof:
PERCENTAGE OF
GENERAL PARTNER
OWNED BY RAMCO PERCENTAGE OF
PRINCIPALS, GENERAL PARTNERSHIP
RELATING TO HOLDERS INTERESTS OWNED BY
WHICH ARE LIMITED RAMCO PRINCIPALS
PARTNERSHIPS WITH A RELATING TO HOLDERS
PARTNERSHIP AS WHICH ARE GENERAL
PARTNERSHIP NAME A GENERAL PARTNER PARTNERSHIPS
---------------- -------------------- --------------------
Tel Twelve Mall Associates Limited Partnership 100(1)
Ramco Fraser Development Company 100
Ramco South Naples Development 100
Ramco Singer Associates Limited Partnership 83.33(2)
West Allis Shopping Center Associates 50
KMW Sterling Development Company 50
Ramco Kentwood Associates 100
Ramco Oak Brook Square Associates Limited Partnership (corporate general)
Sterling Mall Associates Limited Partnership 100(3)
West Oaks Development Company 83.33
Ramco Novi Development Associates Limited Partnership 100(4)
Ramco Spring Meadows Associates 15
Ramco Jackson Associates Limited Partnership Corporate general
Ramco Lansing Associates 100
Ramco Lewis Alexis Associates 100
Michigan Shopping Center Venture II Limited Partnership 68.58(5)
|
2. The name of the General Partner owned by the Ramco Principals is Ramco Troy Associates, a Michigan co-partnership, and the specified interest therein is subject to a pledge under this Pledge Agreement.
3. The name of the General Partner is Ramco Consumers Mall Associates Limited Partnership, a Michigan limited partnership, and the specified interest therein is subject to a pledge under this Pledge Agreement.
4. The name of the General Partner is Ramco Novi Development Company, a Michigan co-partnership, and the specified interest therein is subject to a pledge under this Pledge Agreement.
5. The name of the General Partner owned by the Ramco Principals is Ramco GP, a Michigan co-partnership, and the specified interest therein is subject to a pledge under this Pledge Agreement.
EXHIBIT E TO PLEDGE AGREEMENT
Shares of stock in the general partnerships of Holder, which general partners are corporations, owned by the Ramco Principals on the date hereof:
Ramco Jackson, Inc. 100%
Ramco Oak Brook Square, Inc. 100%
EXHIBIT F TO PLEDGE AGREEMENT
NUMBER OF OP UNITS OWNED BY HOLDERS
AND APPLICABLE PERCENTAGE OWNERSHIP OF RAMCO PRINCIPALS
APPLICABLE
NUMBER OF OP UNITS PERCENTAGE
OWNED ON DATE OWNERSHIP OF RAMCO
HEREOF PRINCIPALS
-------------------- -----------------
Tel Twelve Mall Associates Limited Partnership 674,399 54.59
Ramco Fraser Development Company 74,972 100
Ramco South Naples Development 69,565 100
Ramco Singer Associates Limited Partnership 96,876 62.50
West Allis Shopping Center Associates 179,469 50
KMW Sterling Development Co. 129,150 50
Ramco Kentwood Associates 1,871 100
Ramco Oak Brook Square Associates Limited 754 98
Partnership
Sterling Mall Associates Limited Partnership 93,158 10
West Oaks Development Company 85,674 83.33
Ramco Novi Development Associates Limited 220,828 50
Partnership
Ramco Spring Meadows Associates 21,772 15.27
Ramco Jackson Associates Limited Partnership 10 100
Ramco Lansing Associates 62,295 100
Ramco Lewis Alexis Associates 10,914 100
Michigan Shopping Center Venture II Limited 30,998 0
Partnership =========
Total 1,752,705
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Principal address of all Holders is 27600 Northwestern Highway, Suite 200, Southfield, Michigan 48034.
EXHIBIT G TO PLEDGE AGREEMENT
NUMBER OF OP UNITS OWNED BY HOLDERS
AND APPLICABLE PERCENTAGE OWNERSHIP OF RAMCO PRINCIPALS
(WHICH OP UNITS ARE CONCURRENTLY HEREWITH BEING (OR PRIOR
HERETO ARE) PLEDGED TO A FINANCIAL INSTITUTION TO SECURE
CERTAIN RECOURSE INDEBTEDNESS OF THE RAMCO PRINCIPALS)
APPLICABLE
NUMBER OF OP UNITS PERCENTAGE
OWNED ON DATE OWNERSHIP OF RAMCO
HEREOF PRINCIPALS
------------------ -----------------
Ramco Lapeer Associates Limited Partnership 74,981 100
Roseville Plaza Limited Partnership 251,764 50
Southfield Plaza Limited Partnership 117,836 50
Ford Sheldon Plaza Company 65,465 51
W&G Realty Company 25,668 50
=======
Total 535,714
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EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made as of May 10, 1996 (this
"AGREEMENT"), among RAMCO-GERSHENSON PROPERTIES TRUST, formerly known as RPS
Realty Trust, a Massachusetts business trust (the "COMPANY"), DENNIS GERSHENSON,
JOEL GERSHENSON, BRUCE GERSHENSON, RICHARD GERSHENSON, MICHAEL A. WARD, MICHAEL
A. WARD U/T/A DATED 2/22/77, AS AMENDED (collectively, the "RAMCO PRINCIPALS")
and each of the Persons (together with the Ramco Principals, collectively, the
"HOLDERS") set forth on Exhibit A hereto (as it may be amended from time to
time).
RECITALS:
A. The Holders are entering into this Agreement in connection with the transactions (the "RAMCO TRANSACTION") effectuated on this day by the Company and Ramco-Gershenson, Inc. and its affiliates pursuant to which the Company contributed cash and properties to Ramco-Gershenson Properties, L.P., a Delaware limited partnership (the "OPERATING PARTNERSHIP").
B. Pursuant to the Ramco Transaction, the Holders have been issued units of limited partnership interest in the Operating Partnership ("OP UNITS"), which OP Units may be exchanged for shares of beneficial interest of the Company, par value $.10 per share (the "SHARES") pursuant to an Exchange Rights Agreement dated the date hereof and entered into among the Holders and the Company pursuant to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated the date hereof (as amended from time to time, the "OPERATING PARTNERSHIP AGREEMENT").
C. The Company has agreed to provide each of the Holders with certain registration rights as set forth herein.
Accordingly, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1. "AGREEMENT" has the meaning set forth in the introductory paragraph.
1.2. "RAMCO TRANSACTION" has the meaning set forth in Recital A.
1.3. "BUSINESS DAY" means any day on which the New York Stock Exchange is open for trading.
1.4. "CLOSING DATE" means the date of the consummation of the Ramco Transaction.
1.5. "COMPANY" has the meaning set forth in the introductory paragraph.
1.6. "ELIGIBLE SECURITIES" means all or any portion of the Shares acquired by the Holders in connection with or upon exchange of the OP Units. As to any proposed offer or sale of Eligible Securities, such securities shall cease to be Eligible Securities with respect to such proposed offer or sale when (i) a registration statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with such registration statement or (ii) such securities shall have been otherwise transferred pursuant to an applicable exemption under the Securities Act, new certificates for such securities not bearing a legend restricting further transfer shall have been delivered by the Company and such securities shall be freely transferable to the public without registration under the Securities Act.
1.7. "LOCK-UP AGREEMENTS" means the Lock-Up Agreements executed in favor of the Company by each of the Holders.
1.8. "LOCK-UP DATE" (a) with respect to the Ramco Principals means the date that is 30 months after the Closing Date and (b) with respect to Holders other than the Ramco Principals means the date that is one year after the Closing Date. If any such date is not a Business Day, the next succeeding date that is a Business Day shall be the Lock-Up Date.
1.9. "OPERATING PARTNERSHIP" has the meaning set forth in Recital A.
1.10. "OPERATING PARTNERSHIP AGREEMENT" has the meaning set forth in Recital B.
1.11. "PERSON" means an individual, a partnership (general or limited), corporation, joint venture, business trust, cooperative, association or other form of business organization, whether or not regarded as a legal entity under applicable law, a trust (inter vivos or testamentary), an estate of a deceased, insane or incompetent person, a quasi-governmental entity, a government or any agency, authority, political subdivision or other instrumentality thereof, or any other entity.
1.12. "PERMITTED TRANSFEREES" with respect to each Holder means (i) with respect to OP Units, Persons which qualify as Permitted Transferees under the Operating Partnership Agreement, and (ii) with respect to Shares, any other Holder or an Affiliate of such Holder; provided, that no Person shall be deemed to be a Permitted Transferee until the Company receives the requisite notice and signature page pursuant to Section 7.1. As used herein, the term "AFFILIATE" shall mean any Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, a specified Person, and, with respect to an individual, shall include such Person's immediate family or a trust for the benefit thereof.
1.13. "REGISTRATION EXPENSES" means all expenses incident to the Company's performance of or compliance with the registration requirements set forth in this Agreement
including, without limitation, the following: (i) the fees, disbursements and expenses of the Company's counsel(s) (United States and foreign), accountants and experts in connection with the registration of Eligible Securities to be disposed of under the Securities Act; (ii) all expenses in connection with the preparation, printing and filing of the registration statement, any preliminary prospectus or final prospectus, any other offering document and amendments and supplements thereto and the mailing and delivering of copies thereof to the underwriters and dealers; (iii) the cost of printing or producing any agreement(s) among underwriters, underwriting agreement(s) and blue sky or legal investment memoranda, any selling agreements and any other documents in connection with the offering, sale or delivery of Eligible Securities to be disposed of; (iv) all expenses in connection with the qualification of Eligible Securities to be disposed of for offering and sale under state securities laws, including the fees and disbursements of counsel for the underwriters in connection with such qualification and in connection with any blue sky and legal investment surveys; (v) the filing fees incident to securing any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of Eligible Securities to be disposed of; (vi) fees and expenses incurred in connection with the listing of Eligible Securities on each securities exchange or quotation system on which the Shares are then listed; and (vii) SEC or blue sky registration fees attributable to Eligible Securities or transfer taxes applicable to Eligible Securities; provided, that Registration Expenses with respect to any registration pursuant to this Agreement shall not include underwriting discounts or commissions attributable to Eligible Securities.
1.14. "SEC" means the Securities and Exchange Commission.
1.15. "SECURITIES ACT" means the Securities Act of 1933, as amended, and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the relevant time.
1.16. "SELLING INVESTOR" means any Holder who has requested registration pursuant to Section 3.1.
ARTICLE II
EFFECTIVENESS OF REGISTRATION RIGHTS
2.1. EFFECTIVENESS OF REGISTRATION RIGHTS. This Agreement shall become effective on the date hereof, provided, that the exercise of any registration rights granted pursuant to Article 3 prior to the Lock-Up Date shall be subject to the prior receipt by the Company of the written consent of a majority of the Company's Board of Trustees (including a majority of the independent trustees) to the waiver of the restrictions on transfer of the Shares and securities convertible into or exchangeable or exercisable for Shares set forth in the Lock-Up Agreement applicable to the Holder exercising such registration rights.
ARTICLE III
INCIDENTAL REGISTRATION
3.1. NOTICE AND REGISTRATION. If the Company proposes to register any Shares, any equity securities exercisable for, convertible into or exchangeable for Shares, or other securities issued by it having terms substantially similar to Eligible Securities ("OTHER SECURITIES") for public sale under the Securities Act on a form and in a manner which would permit registration of Eligible Securities for sale to the public under the Securities Act, it will give written notice to each Holder of its intention to do so, and upon the written request of any Holder delivered to the Company within 15 Business Days after the giving of any such notice (which request shall specify the number of Eligible Securities intended to be disposed of by such Holder and the intended method of disposition thereof), the Company will use commercially reasonable efforts to effect, in connection with the registration of the Other Securities, the registration under the Securities Act of all Eligible Securities which the Company has been so requested to register by the Selling Investors, to the extent required to permit the disposition (in accordance with the intended method or methods thereof as aforesaid) of Eligible Securities so to be registered, provided, that:
(a) if, at any time after giving such written notice of its intention to register any Other Securities and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register the Other Securities, the Company may, at its election, give written notice of such determination to the Selling Investors and thereupon the Company shall be relieved of its obligation to register such Eligible Securities in connection with the registration of such Other Securities (but not from its obligation to pay Registration Expenses to the extent incurred in connection therewith as provided in Section 3.2);
(b) The Company will not be required to effect any registration pursuant to this Article 3 if the Company shall have been advised in writing (with a copy to the Selling Investors) by a nationally recognized independent investment banking firm selected by the Company to act as lead underwriter in connection with the public offering of securities by the Company that, in such firm's opinion, a registration of Eligible Securities requested to be registered at that time would materially and adversely affect the Company's own scheduled offering of Other Securities; provided, that if an offering of some but not all of the Eligible Securities requested to be registered by the Selling Investors would not materially adversely affect the Company's offering of Other Securities, the Company shall register the Maximum Excess Amount (as defined below), and such Maximum Excess Amount shall be allocated pro rata among all Selling Investors based upon the number of shares for which registration was requested by each. For purposes of this paragraph, the "MAXIMUM EXCESS AMOUNT" shall mean the largest number of Eligible Securities (if any) that, in the opinion of the nationally recognized independent investment banking firm selected by the Company, could be offered to the public without materially adversely affecting the offering and sale of Other Securities as then contemplated by the Company;
(c) The Company shall not be required to effect any registration of Eligible Securities under this Article 3 incidental to the registration of any of its securities in connection with mergers, acquisitions, exchange offers, subscription offers, dividend reinvestment plans or stock options or other employee benefit plans; and
(d) Notwithstanding any request under Section 3.1(a), a Selling Investor may elect in writing prior to the effective date of a registration under this Article 3, not to register all or any portion of its Eligible Securities in connection with such registration.
3.2. REGISTRATION EXPENSES. The Company shall be responsible for the payment of all Registration Expenses in connection with any registration pursuant to this Article 3.
ARTICLE IV
REGISTRATION PROCEDURES
4.1. REGISTRATION AND QUALIFICATION. If and whenever the Company is required to use all reasonable efforts to effect the registration of any Eligible Securities under the Securities Act as provided in Article 3, the Company will as promptly as is practicable:
(a) prepare, file and use commercially reasonable efforts to cause to become effective a registration statement under the Securities Act regarding the Eligible Securities to be offered;
(b) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Eligible Securities until the earlier of such time as all of such Eligible Securities have been disposed of in accordance with the intended methods of disposition by the Selling Investors set forth in such registration statement or the expiration of 90 days after such Registration Statement becomes effective;
(c) furnish to the Selling Investors and to any underwriter of such Eligible Securities such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), in conformity with the requirements of the Securities Act, such documents incorporated by reference in such registration statement or prospectus, and such other documents as the Selling Investors or such underwriter may reasonably request;
(d) use commercially reasonable efforts to register or qualify all Eligible Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as the Selling Investors or any underwriter of such Eligible
Securities shall reasonably request, and do any and all other acts and things which may be reasonably requested by the Selling Investors or any underwriter to consummate the disposition in such jurisdictions of the Eligible Securities covered by such registration statement, except the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it is not so qualified, or to subject itself to taxation in any jurisdiction where it is not then subject to taxation, or to consent to general service of process in any jurisdiction where it is not then subject to service of process;
(e) use commercially reasonable efforts to list the Eligible Securities on each national securities exchange or quotation system on which the Shares are then listed, if the listing of such securities is then permitted under the rules of such exchange;
(f) (i) use commercially reasonable efforts to furnish to the
Selling Investors an opinion of counsel for the Company, addressed to
them, dated the date of the closing under the underwriting agreement, and
(ii) upon such Selling Investor's request, use commercially reasonable
efforts to furnish to the Selling Investors a "comfort letter" signed by
the independent public accountants who have certified the Company's
financial statements included in such registration statement, addressed
to them; provided, that with respect to such opinion and "comfort
letter," the following shall apply: (A) the opinion and "comfort letter"
shall cover substantially the same matters with respect to such
registration statement (and the prospectus included therein) as are
customarily covered in opinions of issuer's counsel and in accountants'
letters delivered to underwriters in underwritten public offerings of
securities and such other matters as the Selling Investors may reasonably
request; and (B) the "comfort letter" also shall cover events subsequent
to the date of such financial statements; and
(g) notify the Selling Investors immediately upon the happening of any event as a result of which a prospectus included in a registration statement, relating to a registration pursuant to Article 3, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, at the request of the Selling Investors, prepare and furnish to the Selling Investors as many copies of a supplement to or an amendment of such prospectus as the Selling Investors reasonably request so that, as thereafter delivered to the purchasers of such Eligible Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
The Company may require the Selling Investors to furnish the Company such information regarding the Selling Investors and the distribution of such securities as the Company may from time to time reasonably request in writing and as shall be required by law or by the SEC in connection with any registration.
4.2. UNDERWRITING. (a) If requested by the underwriters for any
underwritten offering of Eligible Securities pursuant to a registration
described in this Agreement, the Company will enter into and perform its
obligations under an underwriting agreement with such underwriters for such
offering, such agreement to contain such representations and warranties by the
Company and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect and to the
extent provided in Article 6 and the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Section
4.1(f). The holders of Eligible Securities on whose behalf Eligible Securities
are to be distributed by such underwriters shall be parties to any such
underwriting agreement and the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders of
Eligible Securities.
(b) In the event that any registration pursuant to Article 3 shall involve, in whole or in part, an underwritten offering, the Company may require Eligible Securities requested to be registered pursuant to Article 3 to be included in such underwriting on the same terms and conditions as shall be applicable to the Other Securities being sold through underwriters under such registration. In such case, the holders of Eligible Securities on whose behalf Eligible Securities are to be distributed by such underwriters shall be parties to any such underwriting agreement. Such agreement shall contain such representations and warranties by the Company and the Selling Investors and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, indemnities and contribution to the effect and to the extent provided in Article 6. The representations and warranties in such underwriting agreement by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such holders of Eligible Securities.
4.3. QUALIFICATION FOR RULE 144 SALES. The Company will take all actions reasonably necessary to comply with the filing requirements described in Rule 144(c)(1) so as to enable the Holders to sell Eligible Securities without registration under the Securities Act and, upon the written request of any Holder, the Company will deliver to such Holder a written statement as to whether it has complied with such filing requirements.
ARTICLE V
PREPARATION; REASONABLE INVESTIGATION
5.1. PREPARATION; REASONABLE INVESTIGATION. In connection with the preparation and filing of each registration statement registering Eligible Securities under the Securities Act, the Company will give the Selling Investors and the underwriters, if any, and their respective counsel and accountants, drafts of such registration statement for their review and comment prior to filing and such reasonable and customary access to its books and records and such opportunities to discuss the business of the Company with its officers and the independent public accountants who have certified its financial statements as shall be necessary, in the opinion of the Selling Investors
and such underwriters or their respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act.
ARTICLE VI
INDEMNIFICATION AND CONTRIBUTION
6.1. INDEMNIFICATION. (a) In the event of any registration of Eligible Securities hereunder, the Company will, and hereby does, indemnify and hold harmless, each Selling Investor, its respective directors, trustees, officers, partners, agents, employees and affiliates and each other person who participates as an underwriter in the offering or sale of such securities and each other Person, if any, who controls each such Selling Investor or any such underwriter within the meaning of the Securities Act, against any and all losses, claims, damages, expenses or liabilities, joint or several, actions or proceedings (whether commenced or threatened) in respect thereof, to which each such indemnified party may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, expenses or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such securities were registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances in which they were made not misleading, and the Company will reimburse each such Selling Investor and each such director, trustee, officer, partner, agent, employee or affiliate, underwriter and controlling person for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, expense, liability, action, or proceeding; provided, that (i) the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense or liability (or action or proceeding in respect thereof) arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company through an instrument duly executed by or on behalf of such Selling Investor or underwriter specifically stating that it is for use in the preparation thereof, and (ii) the Company shall not be liable to any person who participates as an underwriter in the offering or sale of Eligible Securities or any other person, if any, who controls or is controlled by such underwriter within the meaning of the Securities Act, in any such case to the extent that any such loss, claim, damage, expense or liability (or action or proceeding in respect thereof) arises out of such underwriter's failure to send or give a copy of the final prospectus, as the same may be then supplemented or amended, to the person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Eligible Securities to such person if such statement or omission was corrected in such final prospectus.
(b) Each Selling Investor severally will indemnify, and hereby does, indemnify and hold harmless the Company, its trustees, its officers who sign the registration statement, each
Person who participates as an underwriter in the offering or sale of such securities, and each Person, if any, who controls the Company or any such underwriter within the meaning of the Securities Act against any and all losses, claims, damages, expenses or liabilities, joint or several, actions or proceedings (whether commenced or threatened) in respect thereof, to which each such indemnified party may become subject under the Securities Act or otherwise insofar as such losses, claims, damages, expenses or liabilities (or actions or proceedings, whether commenced or threatened in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact in or omission or alleged omission to state a material fact in such registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, but only to the extent that such statement or omission was made in reliance upon and in conformity with written information furnished by such Selling Investor to the Company through an instrument duly executed by or on behalf of such Selling Investor specifically stating that it is for use in preparation thereof and provided, that no Selling Investor shall be liable to any person who participates as an underwriter in the offering or sale of Eligible Securities or any other person, if any, who controls or is controlled by such underwriter within the meaning of the Securities Act, in any such case to the extent that any such loss, claim, damage, expense or liability (or action or proceeding in respect thereof) arises out of such underwriter's failure to send or give a copy of the final prospectus, as the same may be then supplemented or amended, to the person asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Eligible Securities to such person if such statement or omission was corrected in such final prospectus..
(c) Promptly after receipt by any indemnified party hereunder of
notice of the commencement of any action or proceeding involving a claim
referred to in paragraphs (a) or (b) of this Section 6.1, the indemnified party
will notify the indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
under paragraphs (a) or (b) of this Section 6.1, except to the extent it is
prejudiced thereby. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel selected by it
and approved by the indemnified party (which approval shall not be unreasonably
withheld or delayed), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under paragraph
(a) or (b) of this Section 6.1 for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that an indemnified party shall have the right
to retain its own counsel, with the reasonable fees and expenses to be paid by
the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. In addition, the
indemnifying party shall not be required to indemnify, reimburse or otherwise
make
any contribution to the amount paid or payable by the indemnified party for any losses, claims, damages, expenses or liabilities incurred by the indemnified party in settlement of any actions, proceedings or investigations otherwise covered hereunder unless such settlement has been previously approved by the indemnifying party, which approval shall not be unreasonably withheld or delayed.
(d) If for any reason the indemnity under this Section 6.1 is unavailable or is insufficient to hold harmless any indemnified party under paragraph (a) or (b) of this Section 6.1, then the indemnifying parties shall contribute to the amount paid or payable to the indemnified party as a result of any loss, claim, expense, damage or liability (or actions or proceedings, whether commenced or threatened, in respect thereof), and legal or other expenses reasonably incurred by the indemnified party in connection with investigating or defending any such loss, claim, expense, damage, liability, action or proceeding, in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Selling Investor and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, the allocation provided in the second preceding sentence is not permitted by applicable law, or if the allocation provided in the second preceding sentence provides a lesser sum to the indemnified party than the amount hereinafter calculated, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party in such proportion as is appropriate to reflect not only such relative fault but also the relative benefits of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contributions pursuant to this paragraph (d) of Section 6.1 were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the preceding sentences of this paragraph (d) of Section 6.1.
(e) Indemnification and contribution similar to that specified in this Section 6.1 (with appropriate modifications) shall be given by the Company and the Selling Investors with respect to any required registration or other qualification of securities under any federal, state or blue sky law or regulation of any governmental authority other than the Securities Act.
(f) Notwithstanding any other provision of this Section 6.1, to the extent that any director, trustee, officer, partner, agent, employee, affiliate, or other representative (current or former) of any indemnified party is a witness in any action or proceeding, the indemnifying party agrees to pay to the indemnified party all out-of-pocket expenses reasonably incurred by, or on the behalf of, the indemnified party and such witness in connection therewith.
(g) All legal and other expenses incurred by or on behalf of any Selling Investor in connection with investigating or defending any loss, claim, expense, damage, liability, action or proceeding shall be paid by the Company in advance of the final disposition of such investigation, defense, action or proceeding within 30 days after the receipt by the Company of
a statement or statements from the Selling Investor requesting from time to time such payment, advance or advances. The entitlement of each Selling Investor to such payment or advancement of expenses shall include those incurred in connection with any action or proceeding by the Selling Investor seeking an adjudication or award in arbitration pursuant to this Section 6.1. Such statement or statements shall reasonably evidence such expenses incurred by the Selling Investor in connection therewith.
(h) The termination of any proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, adversely affect the rights of any indemnified party to indemnification hereunder or create a presumption that any indemnified party violated any federal or state securities laws.
(i) (i) In the event that advances are not made pursuant to this
Section 6.1 or payment has not otherwise been timely made, each indemnified
party shall be entitled to seek a final adjudication in an appropriate court of
competent jurisdiction of the entitlement of the indemnified party to
indemnification or advances hereunder.
(ii) The Company and the Selling Investors agree that they
shall be precluded from asserting that the procedures and presumptions of this
Section 6.1 are not valid, binding and enforceable. The Company and the Selling
Investors further agree to stipulate in any such court that the Company and the
Selling Investors are bound by all the provisions of this Section 6.1 and are
precluded from making any assertion to the contrary.
(iii) To the extent deemed appropriate by the court, interest shall be paid by the indemnifying party to the indemnified party at a reasonable interest rate for amounts which the indemnifying party has not timely paid as the result of its indemnification and contribution obligations hereunder.
(j) In the event that any indemnified party is a party to or
intervenes in any proceeding in which the validity or enforceability of this
Section 6.1 is at issue or seeks an adjudication to enforce the rights of any
indemnified party under, or to recover damages for breach of, this Section 6.1,
the indemnified party, if the indemnified party prevails in whole in such
action, shall be entitled to recover from the indemnifying party and shall be
indemnified by the indemnifying party against, any expenses incurred by the
indemnified party. If it is determined that the indemnified party is entitled
to indemnification for part (but not all) of the indemnification so requested,
expenses incurred in seeking enforcement of such partial indemnification shall
be reasonably prorated among the claims, issues or matters for which the
indemnified party is entitled to indemnification and for such claims, issues or
matters for which the indemnified party is not so entitled.
(k) The indemnity agreements contained in this Section 6.1 shall be in addition to any other rights (to indemnification, contribution or otherwise) which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect
regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of any Eligible Securities by any Investor.
ARTICLE VII
BENEFITS OF REGISTRATION RIGHTS
7.1. BENEFITS OF REGISTRATION RIGHTS. Each Holder shall give notice to the Company of any transfer by it of Eligible Securities to a Permitted Transferee, identifying the name and address of such Permitted Transferee and the Eligible Securities so transferred, and accompanied by a signature page to this Agreement pursuant to which such Permitted Transferee agrees to be bound by the terms and conditions hereof.
ARTICLE VIII
MISCELLANEOUS
8.1. CAPTIONS. The captions or headings in this Agreement are for convenience and reference only, and in no way define, describe, extend or limit the scope or intent of this Agreement.
8.2. SEVERABILITY. If any clause, provision or section of this Agreement shall be invalid or unenforceable, the invalidity or unenforceability of such clause, provision or section shall not affect the enforceability or validity of any of the remaining clauses, provisions or sections hereof to the extent permitted by applicable law.
8.3. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with the internal laws of the State of New York, without reference to its rules as to conflicts or choice of laws.
8.4. MODIFICATION AND AMENDMENT. This Agreement may not be changed, modified, discharged or amended, except by an instrument signed by all of the parties hereto.
8.5. TERMINATION OF AGREEMENT. This Agreement and the rights granted hereunder shall terminate on December 31, 2094, or such earlier date on which the Operating Partnership may be dissolved in accordance with the Operating Partnership Agreement.
8.6. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.
8.7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding among the parties and supersedes any prior understandings and/or written or oral agreements among them respecting the subject matter herein.
8.8. NOTICES. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery service
or by certified mail, return receipt requested, postage prepaid. Notices shall
be deemed given when actually received, which shall be deemed to be not later
than the next Business Day if sent by overnight courier or after five Business
Days if sent by mail. Notice to the Company shall be made to such party at
27600 Northwestern Highway, Suite 200, Southfield, Michigan 48034, Attn:
Chairman. Notice to each Holder shall be made to such party at the address set
forth under each such Holder's signature hereto, with a copy to Honigman Miller
Schwartz and Cohen, 2290 First National Building, Detroit, Michigan 48226-3583,
Attn: Richard Burstein, Esq.
8.9. JURISDICTION; VENUE. The parties to this Agreement hereby irrevocably submit to the jurisdiction of any Michigan State or Federal court and any appellate court from any thereof over any action or proceeding arising out of or relating to this Agreement, and hereby irrevocably agree that all claims in respect of such action or proceeding may be heard and determined in such Michigan State court or in such Federal Court. The parties to this Agreement hereby irrevocably waive, to the fullest extent permitted under law, the defense of an inconvenient forum or improper venue to the maintenance of such action or proceeding.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused this Agreement to be executed as of the day and year first above written.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson -------------------------------- Name: Dennis Gershenson Title: Chief Executive Officer /s/ Dennis Gershenson ------------------------------------ Dennis Gershenson c/o Ramco-Gershenson Properties Trust 27600 Northwestern Highway, Suite 200 Southfield, Michigan 48034 /s/ Joel Gershenson ------------------------------------- Joel Gershenson c/o Ramco-Gershenson Properties Trust 27600 Northwestern Highway, Suite 200 Southfield, Michigan 48034 /s/ Bruce Gershenson -------------------------------------- Bruce Gershenson c/o Ramco-Gershenson Properties Trust 27600 Northwestern Highway, Suite 200 Southfield, Michigan 48034 /s/ Richard Gershenson -------------------------------------- Richard Gershenson c/o Ramco-Gershenson Properties Trust 27600 Northwestern Highway, Suite 200 Southfield, Michigan 48034 |
(signature pages continued)
/s/ Michael A. Ward ----------------------------------- Michael A. Ward c/o Ramco-Gershenson Properties Trust 27600 Northwestern Highway, Suite 200 Southfield, Michigan 48034 |
MICHAEL A. WARD U/T/A, DATED
2/22/77, AS AMENDED
By: /s/ Michael A. Ward --------------------------------- Trustee c/o Ramco-Gershenson Properties Trust 27600 Northwestern Highway, Suite 200 Southfield, Michigan 48034 |
WEST OAKS I
WEST OAKS DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson ----------------------------------- Dennis Gershenson, Partner |
JACKSON CROSSING
RAMCO JACKSON ASSOCIATES LIMITED
PARTNERSHIP,
a Michigan limited partnership
By: RAMCO JACKSON, INC.,
a Michigan corporation,
its General Partner
By: /s/ Dennis Gershenson
---------------------------
Dennis Gershenson
Vice President
|
(signature pages continued)
SOUTHFIELD PLAZA + S-12
SOUTHFIELD PLAZA LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO VENTURES,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson -------------------------- Dennis Gershenson, Partner |
ROSEVILLE PLAZA
ROSEVILLE PLAZA LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO VENTURES, a Michigan
co-partnership, its General Partner
By: /s/ Dennis Gershenson
--------------------------------
Dennis Gershenson, Partner
|
TEL-TWELVE SHOPPING CENTER
TEL-TWELVE MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: R.G. TEL-TWELVE CO.,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
|
(signature pages continued)
CLINTON VALLEY MALL
STERLING MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO CONSUMERS MALL ASSOCIATES
LIMITED PARTNERSHIP, a Michigan limited
partnership, its General Partner
By: /s/ Dennis Gershenson ----------------------------------- Dennis Gershenson, a General Partner |
EASTRIDGE COMMONS
RAMCO LAPEER ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited partnership
By: RAMCO LAPEER, INC., a Michigan
corporation, its General Partner
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson,
Vice President
|
NEW TOWNE PLAZA
FORD SHELDON PLAZA COMPANY,
a Michigan limited partnership
By: /s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson, a General Partner
|
(signature pages continued)
LAKE ORION PLAZA
W & G REALTY COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
|
OAK BROOK SQUARE
RAMCO OAK BROOK SQUARE ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO OAK BROOK SQUARE, INC.,
a Michigan corporation, general
partner
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson, Vice President
|
FRASER TOWN CENTER
RAMCO FRASER DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson, Partner
|
EDGEWOOD TOWN CENTER
RAMCO LANSING ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson, Partner
|
(signature pages continued)
NORTH TOWNE OFFICE MAX
RAMCO LEWIS ALEXIS ASSOCIATES,
a Michigan partnership
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
|
NAPLES TOWNE CENTER
RAMCO SOUTH NAPLES DEVELOPMENT,
a Florida general partnership
By: /s/ Dennis Gershenson
-----------------------------------
Dennis Gershenson, Partner
|
SPRING MEADOWS SHOPPING CENTER
RAMCO SPRING MEADOWS ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
------------------------------------
Dennis Gershenson, Partner
|
and
JCP REALTY, INC.,
a Delaware corporation
By: /s/ Philip O'Connell ------------------------------------- Philip O'Connell |
(signature pages continued)
TROY TOWNE CENTER
RAMCO SINGER ASSOCIATES LIMITED
PARTNERSHIP, an Ohio limited partnership
By: RAMCO TROY ASSOCIATES,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
------------------------------------
Dennis Gershenson, Partner
|
WEST ALLIS TOWN CENTER
WEST ALLIS SHOPPING CENTER ASSOCIATES,
a Wisconsin general partnership,
By: RAMCO ALLIS DEVELOPMENT COMPANY,
its Partner
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson, Partner
|
FERNDALE PLAZA
MICHIGAN SHOPPING CENTER VENTURE II
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO L & W PARTNERS,
a Michigan co-partnership, its general
partner
By: RAMCO GP,
a Michigan co-partnership, Partner
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
|
(signature pages continued)
WEST OAKS II
RAMCO NOVI DEVELOPMENT ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO NOVI DEVELOPMENT COMPANY,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
|
CLINTON VALLEY STRIP
KMW STERLING DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------------
Dennis Gershenson, Partner
|
KENTWOOD TOWNE CENTER
RAMCO KENTWOOD ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
---------------------------------------
Dennis Gershenson, Partner
|
(signature pages continued)
Exhibit A
Tel-Twelve Mall Associates Limited Partnership
Ramco Fraser Development Company
Ramco Lapeer Associates Limited Partnership
Roseville Plaza Limited Partnership
Ramco South Naples Development
Southfield Plaza Limited Partnership
Ramco Singer Associates Limited Partnership
West Allis Shopping Center Associates
Ford Sheldon Plaza Company
Michigan Shopping Center Ventures II Limited Partnership
KMW Sterling Development Company
Ramco Kentwood Associates
Ramco Oak Brook Square Associates Limited Partnership
Sterling Mall Associates Limited Partnership
W & G Realty Company
West Oaks Development Company
Ramco Novi Development Associates Limited Partnership
JCP Realty
Ramco Spring Meadows Associates
Ramco Jackson Associates Limited Partnership
Ramco Lansing Associates
Ramco Lewis Alexis Associates
Joel Gershenson
Dennis Gershenson
Richard Gershenson
Bruce Gershenson
Michael A. Ward, Trustee u/t/a dated 2/22/77, as amended
EXHIBIT 10.3
EXCHANGE RIGHTS AGREEMENT
THIS EXCHANGE RIGHTS AGREEMENT (this "AGREEMENT"), dated as of May 10, 1996, is entered into by and among Ramco-Gershenson Properties Trust, a Massachusetts business trust, formerly known as RPS Realty Trust (the "COMPANY"), and the Persons whose names are set forth on Exhibit A attached hereto (as it may be amended from time to time).
R E C I T A L S:
A. The Company, as general partner, and the Limited Partners have formed Ramco-Gershenson Properties, L.P., a Delaware limited partnership (the "OPERATING PARTNERSHIP"), pursuant to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership dated the date hereof (the "PARTNERSHIP AGREEMENT").
B. Pursuant to the Partnership Agreement, the Limited Partners hold units of limited partnership interest ("OP UNITS") in the Operating Partnership.
C. The Company has agreed to provide the Limited Partners with certain rights to exchange their OP Units for the Company's shares of beneficial interest, par value $.10 per share ("REIT SHARES") in order to induce each of the Limited Partners to enter into a Lock-Up Agreement with the Company dated the date hereof.
Accordingly, the parties hereto do hereby agree as follows:
ARTICLE 1
DEFINED TERMS
The following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in this Agreement.
"ASSIGNEE" means a Person to whom one or more OP Units have been transferred in a manner determined under the Partnership Agreement, but who has not become a substituted limited partner in accordance therewith.
"BUSINESS DAY" means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.
"CASH AMOUNT" means an amount of cash per OP Unit equal to the Value on the Valuation Date of the REIT Shares Amount.
"DECLARATION OF TRUST" means the Declaration of Trust, dated as of October 14, 1988, as amended.
"EXCHANGE FACTOR" means 1.0, provided, that in the event that the Company (i) declares or pays a dividend on its outstanding REIT Shares in REIT Shares or makes a distribution to all holders of its outstanding REIT Shares in REIT Shares; (ii) subdivides its outstanding REIT Shares; or (iii) combines its outstanding REIT Shares into a smaller number of REIT Shares, the Exchange Factor shall be adjusted by multiplying the Exchange Factor by a fraction, the numerator of which shall be the number of REIT Shares issued and outstanding on the record date for such dividend, distribution, subdivision or combination assuming for such purpose that such dividend, distribution, subdivision or combination has occurred as of such time, and the denominator of which shall be the actual number of REIT Shares (determined without the above assumption) issued and outstanding on the record date for such dividend, distribution, subdivision or combination. Any adjustment to the Exchange Factor shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event.
"EXCHANGING PARTNER" has the meaning set forth in Section 2.1 hereof.
"EXCHANGE RIGHT" has the meaning set forth in Section 2.1 hereof.
"LIEN" means any lien, security interest, mortgage, deed of trust, charge, claim, encumbrance, pledge, option, right of first offer or first refusal and any other right or interest of others of any kind or nature, actual or contingent, or other similar encumbrance of any nature whatsoever.
"LIMITED PARTNER" means the Company and any other Person named as a Limited Partner on Exhibit A, as such Exhibit may be amended from time to time.
"NOTICE OF EXCHANGE" means the Notice of Exchange substantially in the form of Exhibit B to this Agreement.
"RAMCO TRANSACTION" means the transactions pursuant to which the Company and Ramco-Gershenson, Inc. shall have contributed certain assets and properties to the Operating Partnership.
"REIT SHARES AMOUNT" means that number of REIT Shares equal to the product of the number of OP Units offered for exchange by an Exchanging Partner, multiplied by the Exchange Factor as of the Valuation Date, provided, that in the event the Company issues to all holders of REIT Shares rights, options, warrants or convertible or exchangeable securities entitling the shareholders to subscribe for or purchase REIT Shares, or any other securities or property (collectively, the "rights"), then the REIT Shares Amount shall also include such rights that a holder of that number of REIT Shares would be entitled to receive.
"SEC" means the Securities and Exchange Commission.
"SPECIFIED EXCHANGE DATE" means the tenth (10th) Business Day after receipt by the Company and by the Operating Partnership of a Notice of Exchange.
"VALUATION DATE" means the date of receipt by the Company of a Notice of Exchange or, if such date is not a Business Day, the first Business Day thereafter.
"VALUE" means, with respect to a REIT Share, the average of the daily market price for the five (5) consecutive trading days immediately preceding the Valuation Date. The market price for each such trading day shall be: (i) if the REIT Shares are listed or admitted to trading on any national securities exchange or the NASDAQ National Market System, the closing price on such day, or if no such sale takes place on such day, the average of the closing bid and asked prices on such day; (ii) if the REIT Shares are not listed or admitted to trading on any national securities exchange or the NASDAQ National Market System, the last reported sale price on such day or, if no sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reliable quotation source designated by the Company; or (iii) if the REIT Shares are not listed or admitted to trading on any national securities exchange or the NASDAQ National Market System and no such last reported sale price or closing bid and asked prices are available, the average of the reported high bid and low asked prices on such day, as reported by a reliable quotation source designated by the Company, or if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, on the most recent day (not more than five (5) days prior to the date in question) for which prices have been so reported; provided, that if there are no bid and asked prices reported during the five (5) days prior to the date in question, the Value of the REIT Shares shall be determined by the independent trustees of the Company acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate. In the event the REIT Shares Amount includes rights that a holder of REIT Shares would be entitled to receive, then the Value of such rights shall be determined by the Company acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate.
ARTICLE 2
EXCHANGE RIGHT
Section 2.1 Exchange Right.
A. Subject to Sections 2.1.B, 2.1.C, 2.1.D and 2.1.E hereof, the
Company hereby grants to the Limited Partners and the Limited Partners do hereby
accept the right (the "EXCHANGE RIGHT"), exercisable on or after the date one
(1) year after the closing of the Ramco Transaction, to exchange on a Specified
Exchange Date all or a portion of the OP Units held by such Limited Partner at
an exchange price equal to and in the form of the REIT Shares Amount to be paid
by the Company. The Exchange Right shall be exercised pursuant to a Notice of
Exchange delivered to the Company and to the Operating
Partnership by the Limited Partner who is exercising the Exchange Right (the
"EXCHANGING PARTNER"); provided, however, that the Operating Partnership may
exchange the OP Units subject to the Notice of Exchange in accordance with
Section 2.1.B. A Limited Partner may not exercise the Exchange Right for less
than one thousand (1,000) OP Units or, if such Limited Partner holds less than
one thousand (1,000) OP Units, all of the OP Units held by such Limited Partner.
Any Assignee of a Limited Partner may exercise the rights of such Limited
Partner pursuant to this Section 2.1, and such Limited Partner shall be deemed
to have assigned such rights to such Assignee and shall be bound by the exercise
of such rights by such Assignee. In connection with any exercise of such rights
by an Assignee on behalf of a Limited Partner, the REIT Shares Amount shall be
paid by the Operating Partnership directly to such Assignee and not to such
Limited Partner.
B. Notwithstanding the provisions of Section 2.1.A, the Operating
Partnership may, in its sole and absolute discretion, elect to satisfy an
Exchanging Partner's Exchange Right by paying to the Exchanging Partner the Cash
Amount on the Specified Exchange Date. If the Operating Partnership shall elect
to exercise its right to purchase OP Units for the Cash Amount under this
Section 2.1.B with respect to a Notice of Exchange, it shall so notify the
Exchanging Partner within five Business Days after the receipt by it of such
Notice of Exchange. In the event the Operating Partnership shall elect to
satisfy an Exchanging Partner's Exchange Right by exchanging REIT Shares for the
OP Units offered for exchange, each Exchanging Partner agrees to execute such
documents as the Operating Partnership may reasonably require in connection with
the issuance of REIT Shares upon exercise of the Exchange Right.
C. Notwithstanding the provisions of Section 2.1.A and Section 2.1.B, a Limited Partner shall not be entitled to exercise the Exchange Right pursuant to Section 2.1.A if the delivery of REIT Shares to such Partner on the Specified Exchange Date by the Company pursuant to Section 2.1.A (regardless of whether or not the Operating Partnership would in fact exercise its rights under Section 2.1.B) would be prohibited under the Declaration of Trust of the Company.
D. Notwithstanding the provisions of Section 2.1.A and Section 2.1.B, the Exchange Right may be exercised prior to the date which is one (1) year after the closing of the Ramco Transaction (i) with the prior written consent of at least a majority of the Company's independent trustees or (ii) in the event of the death of a Limited Partner prior to such date, to the minimum extent necessary to permit the estate of such Limited Partner to acquire REIT Shares pursuant to Section 2.1.A or cash pursuant to Section 2.1.B that could be utilized to fund the payment of any estate taxes that may be payable at such time.
E. The Exchange Right shall expire with respect to any OP Units for which an Exchange Notice has not been delivered to the Company and to the Operating Partnership on or before December 31, 2094.
F. Any exchange of OP Units pursuant to this Article 2 shall be deemed to have occurred as of the Specified Exchange Date for all purposes, including without limitation the payment of distributions or dividends in respect of OP Units or REIT shares, as applicable. Any OP Units acquired by the Operating Partnership pursuant to an exercise by any Limited Partner of an Exchange Right shall be deemed to be acquired by and reallocated or reissued to the Operating Partnership. The Company, as general partner of the Operating Partnership, shall amend the Partnership Agreement to reflect each such exchange and reallocation or reissuance of OP Units and each corresponding recalculation of the OP Units of the Limited Partners. The number of OP Units to be reallocated or reissued to the Operating Partnership shall equal the number of REIT Shares issued to a Limited Partner upon exercise of an Exchange Right.
G. Except in connection with a merger, business combination or other reorganization transaction, the Company shall not exchange any of its OP Units as long as there are any other holders of OP Units.
ARTICLE 3
OTHER PROVISIONS
Section 3.1 Covenants of the Company.
A. At all times during the pendency of the Exchange Right, the Company shall reserve for issuance such number of REIT Shares as may be necessary to enable the Company to issue such shares in full payment of the REIT Shares Amount in regard to all OP Units held by Limited Partners which are from time to time outstanding.
B. During the pendency of the Exchange Right, the Company shall deliver to Limited Partners in a timely manner all reports filed by the Company with the SEC to the extent the Company also transmits such reports to its shareholders and all other communications transmitted from time to time by the Company to its shareholders generally.
C. The Company shall notify each Limited Partner, upon request, of the then current Exchange Factor.
Section 3.2 Fractional Shares.
No fractional REIT Shares shall be issued upon exchange of OP Units. The number of full shares of REIT Shares which shall be issuable upon exchange of OP Units (or the cash equivalent amount thereof if the Cash Amount is paid) shall be computed on the basis of the aggregate amount of OP Units so surrendered. Instead of any fractional REIT Shares which would otherwise be issuable upon exchange of any OP Units, the Company shall pay a cash adjustment in respect of such fraction in an amount equal to the Cash Amount of an OP Unit multiplied by such fraction.
ARTICLE 4
GENERAL PROVISIONS
Section 4.1 Addresses and Notice.
Any notice, demand, request or report required or permitted to be
given or made to a Limited Partner or Assignee under this Agreement shill be in
writing and shall be deemed given or made when delivered in person or when sent
by first class United States mail or by other means of written communication to
the Limited Partner or Assignee at the address listed on the records of the
Partnership. Notice to the Company shall be made to the following address:
27600 Northwestern Highway, Suite 200, Southfield, Michigan 48036, Attn:
Chairman.
Section 4.2 Titles and Captions.
All article or section titles or captions in this Agreement are for convenience only. They shall not be deemed part of this Agreement and in no way define, limit, extend or describe the scope or intent of any provisions hereof. Except as specifically provided otherwise, references to "Articles" and "Sections" are to Articles and Sections of this Agreement.
Section 4.3 Pronouns and Plurals.
Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.
Section 4.4 Further Action.
The parties shall execute and deliver all documents, provide all information and take or refrain from taking action as may be necessary or appropriate to achieve the purposes of this Agreement.
Section 4.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
Section 4.6 Waiver.
No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy
consequent upon a breach thereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition.
Section 4.7 Counterparts.
This Agreement may be executed in counterparts, all of which together shall constitute one agreement binding on all of the parties hereto, notwithstanding that all such parties are not signatories to the original or the same counterpart. Each party shall become bound by this Agreement immediately upon affixing its signature hereto.
Section 4.8 Applicable Law.
This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Delaware, without regard to the principles of conflicts of laws thereof.
Section 4.9 Invalidity of Provisions.
If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused this Agreement to be executed as of the day and year first above written.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
--------------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
|
WEST OAKS I
WEST OAKS DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
|
JACKSON CROSSING
RAMCO JACKSON ASSOCIATES LIMITED
PARTNERSHIP,
a Michigan limited partnership
By: RAMCO JACKSON, INC.,
a Michigan corporation,
its General Partner
By: /s/ Dennis Gershenson
------------------------------
Dennis Gershenson
Vice President
|
SOUTHFIELD PLAZA + S-12
SOUTHFIELD PLAZA LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO VENTURES,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
-------------------------------
Dennis Gershenson, Partner
|
(signature pages continued)
ROSEVILLE PLAZA
ROSEVILLE PLAZA LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO VENTURES, a Michigan
co-partnership, its General Partner
By: /s/ Dennis Gershenson
------------------------------
Dennis Gershenson, Partner
|
TEL-TWELVE SHOPPING CENTER
TEL-TWELVE MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: R.G. TEL-TWELVE CO.,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
------------------------------
Dennis Gershenson, Partner
|
CLINTON VALLEY MALL
STERLING MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO CONSUMERS MALL ASSOCIATES
LIMITED PARTNERSHIP, a Michigan limited
partnership, its General Partner
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson, a General Partner
|
(signature pages continued)
EASTRIDGE COMMONS
RAMCO LAPEER ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited partnership
By: RAMCO LAPEER, INC., a Michigan
corporation, its General Partner
By: /s/ Dennis Gershenson
-------------------------------
Dennis Gershenson,
Vice President
|
NEW TOWNE PLAZA
FORD SHELDON PLAZA COMPANY,
a Michigan limited partnership
By: /s/ Dennis Gershenson
-------------------------------
Dennis Gershenson,
a General Partner
|
LAKE ORION PLAZA
W & G REALTY COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
------------------------------------
Dennis Gershenson, Partner
|
OAK BROOK SQUARE
RAMCO OAK BROOK SQUARE ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO OAK BROOK SQUARE, INC.,
a Michigan corporation, general partner
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Vice President
|
(signature pages continued)
FRASER TOWN CENTER
RAMCO FRASER DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------
Dennis Gershenson, Partner
|
EDGEWOOD TOWN CENTER
RAMCO LANSING ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
--------------------------------
Dennis Gershenson, Partner
|
NORTH TOWNE OFFICE MAX
RAMCO LEWIS ALEXIS ASSOCIATES,
a Michigan partnership
By: /s/ Dennis Gershenson
---------------------------------
Dennis Gershenson, Partner
|
NAPLES TOWNE CENTER
RAMCO SOUTH NAPLES DEVELOPMENT,
a Florida general partnership
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
|
(signature pages continued)
SPRING MEADOWS SHOPPING CENTER
RAMCO SPRING MEADOWS ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson, Partner
|
and
JCP REALTY, INC.,
a Delaware corporation
By: /s/ Philip O'Connell -------------------------------------- Philip O'Connell |
TROY TOWNE CENTER
RAMCO SINGER ASSOCIATES LIMITED
PARTNERSHIP, an Ohio limited partnership
By: RAMCO TROY ASSOCIATES,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
----------------------------------
Dennis Gershenson, Partner
|
WEST ALLIS TOWN CENTER
WEST ALLIS SHOPPING CENTER ASSOCIATES,
a Wisconsin general partnership
By: RAMCO ALLIS DEVELOPMENT COMPANY,
its Partner
By: /s/ Dennis Gershenson
------------------------------------
Dennis Gershenson, Partner
|
(signature pages continued)
FERNDALE PLAZA
MICHIGAN SHOPPING CENTER VENTURE II
LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO L & W PARTNERS,
a Michigan co-partnership, its general
partner
By: RAMCO GP,
a Michigan co-partnership, Partner
By: /s/ Dennis Gershenson
--------------------------------
Dennis Gershenson, Partner
|
WEST OAKS II
RAMCO NOVI DEVELOPMENT ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan co-partnership
By: RAMCO NOVI DEVELOPMENT COMPANY,
a Michigan co-partnership,
its General Partner
By: /s/ Dennis Gershenson
-------------------------------------
Dennis Gershenson, Partner
|
CLINTON VALLEY STRIP
KMW STERLING DEVELOPMENT COMPANY,
a Michigan co-partnership
By: /s/ Dennis Gershenson
-------------------------------------------
Dennis Gershenson, Partner
|
(signauture pages continued)
KENTWOOD TOWNE CENTER
RAMCO KENTWOOD ASSOCIATES,
a Michigan co-partnership
By: /s/ Dennis Gershenson
-------------------------------
Dennis Gershenson, Partner
/s/ Joel Gershenson
----------------------------------------
Joel Gershenson
/s/ Dennis Gershenson
----------------------------------------
Dennis Gershenson
/s/ Richard Gershenson
----------------------------------------
Richard Gershenson
/s/ Bruce Gershenson
----------------------------------------
Bruce Gershenson
|
MICHAEL A. WARD, TRUSTEE, U/T/A DATED
2/22/77, AS AMENDED
/s/ Michael A. Ward ---------------------------------------- Michael A. Ward, Trustee U/T/A dated 2/22/77, as amended |
(End of signature pages)
Exhibit A
Tel-Twelve Mall Associates Limited Partnership
Ramco Fraser Development Company
Ramco Lapeer Associates Limited Partnership
Roseville Plaza Limited Partnership
Ramco South Naples Development
Southfield Plaza Limited Partnership
Ramco Singer Associates Limited Partnership
West Allis Shopping Center Associates
Ford Sheldon Plaza Company
Michigan Shopping Center Ventures II Limited Partnership
KMW Sterling Development Company
Ramco Kentwood Associates
Ramco Oak Brook Square Associates Limited Partnership
Sterling Mall Associates Limited Partnership
W & G Realty Company
West Oaks Development Company
Ramco Novi Development Associates Limited Partnership
JCP Realty
Ramco Spring Meadows Associates
Ramco Jackson Associates Limited Partnership
Ramco Lansing Associates
Ramco Lewis Alexis Associates
Joel Gershenson
Dennis Gershenson
Richard Gershenson
Bruce Gershenson
Michael A. Ward, Trustee u/t/a dated 2/22/77, as amended
EXHIBIT 10.4
1996 SHARE OPTION PLAN
OF
RAMCO-GERSHENSON PROPERTIES TRUST
TABLE OF CONTENTS
PAGE
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS..................... 1
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY
TO SELECT PARTICIPANTS AND DETERMINE AWARDS.................. 5
SECTION 3. SHARES ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION........ 6
SECTION 4. ELIGIBILITY ................................................. 7
SECTION 5. SHARE OPTIONS................................................ 7
SECTION 6. TAX WITHHOLDING.............................................. 12
SECTION 7. TRANSFER, LEAVE OF ABSENCE, ETC.............................. 13
SECTION 8. AMENDMENTS AND TERMINATION................................... 14
SECTION 9. CHANGE OF CONTROL PROVISIONS................................. 14
SECTION 10. GENERAL PROVISIONS........................................... 16
SECTION 11. EFFECTIVE DATE OF PLAN....................................... 17
SECTION 12. GOVERNING LAW................................................ 17
|
1996 SHARE OPTION PLAN
OF
RAMCO-GERSHENSON PROPERTIES TRUST
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITION
The 1996 Share Option Plan of Ramco-Gershenson Properties Trust (the "Plan") was adopted to encourage and enable the officers and employees of Ramco-Gershenson Properties Trust, formerly known as RPS Realty Trust, a Massachusetts business trust (the "Company"), and the officers and employees of Ramco-Gershenson Properties, L.P., a Delaware limited partnership (the "Operating Partnership"), Ramco-Gershenson, Inc., a Michigan corporation (the "Management Company"), and their respective Subsidiaries (as hereinafter defined) upon whose judgment, initiative and efforts the Company largely depends for the successful conduct of its business, to acquire a proprietary interest in the Company. It is anticipated that providing such persons with a direct stake in the Company's welfare will assure a closer identification of their interests with those of the Company, thereby stimulating their efforts on the Company's behalf and strengthening their desire to remain with the Company.
The following terms shall be defined as set forth below:
"Act" means the Securities Exchange Act of 1934, as amended.
"Award" or "Awards" means Share Options. "Board" means the Board of Trustees of the Company. "Cause" (a) if an Employee is not subject to a written employment |
agreement with any Employer, means the occurrence of one or more of the following: (i) an Employee is convicted of, pleads guilty to, or confesses to any felony or any act of fraud, misappropriation or embezzlement which has an immediate and materially adverse effect on an Employer, as determined by the Board in good faith in its sole discretion, (ii) an Employee engages in a fraudulent act to the material damage or prejudice of an Employer or in conduct or activities materially damaging to the property, business or reputation of an Employer, all as determined by the Board in good faith in its sole discretion, (iii) any material act or omission by an Employee involving malfeasance or negligence in the performance of the Employee's duties to an Employer to the material detriment of an Employer, as determined by the Board in good faith in its sole discretion, which has not been corrected by the Employee within 30 days after written notice of any such act or omission, (iv) failure by an Employee to comply in any material respect with any written policies or directives of the Board as determined by the Board in
good faith in its sole discretion, which has not been corrected by the Employee within 30 days after written notice of such failure, or (v) material breach by an Employee of his noncompetition agreement with an Employer, if any, as determined by the Board in good faith in its sole discretion or (b) if an Employee is subject to a written employment agreement with any Employer, has the meaning set forth in such employment agreement.
"Change of Control" (a) if an Employee is not subject to a written
employment agreement with any Employer, shall have the meaning set forth in
Section 9 hereof or (b) if any Employee is subject to a written employment
agreement with any Employer, has the meaning set forth in such employment
agreement.
"Code" means the Internal Revenue Code of 1986, as amended, and any successor Code, and related rules, regulations and interpretations.
"Committee" means the Committee of the Board referred to in Section 2 hereof.
"Company Subsidiary" means any corporation, partnership or other entity (other than the Company) in an unbroken chain beginning with the Company if all of them, in the aggregate, other than the last one in the unbroken chain, then own stock or other interests possessing 50 percent or more of the total combined economic interests or the total combined voting power of all classes of stock or other interests in each of the others in such chain; provided, however, that "Company Subsidiary" shall not include the Operating Partnership, the Management Company or any of their Subsidiaries.
"Declaration of Trust" means the Amended and Restated Declaration of Trust of the Company dated October 14, 1988, as amended.
"Disability" (a) if an Employee is not subject to a written employment agreement with any Employer, shall mean an Employee's inability to perform his normal required services for the Employer for a period of six consecutive months by reason of the Employee's mental or physical disability, as determined by the Committee in good faith in its sole discretion or (b) if an Employee is subject to a written employment agreement with any Employer, has the meaning set forth in such employment agreement.
"Disinterested Person" means an Independent Trustee who qualifies as such under Rule 16b-3(c)(2)(i) promulgated under the Act, or any successor definition under the Act.
"Effective Date" has the meaning set forth in Section 11 hereof.
"Employee" means any officer or other employee (as defined in accordance with Section 3401(c) of the Code) of an Employer.
"Employer" means, as the context may require, the Company, the Operating Partnership, the Management Company and their respective Subsidiaries.
"Existing Option Plan" means the RPS Realty Trust 1989 Employees' Stock Option Plan, as amended from time to time.
"Fair Market Value" on any given date means the last reported sale price at which Shares are traded on such date or, if no Shares are traded on such date, the most recent date on which Shares were traded, as reflected on the New York Stock Exchange or, if applicable, any other national stock exchange on which the Shares are traded. If the Shares are not listed on any national exchange, the Committee will determine the Fair Market Value.
"Independent Trustee" means a member of the Board who is not also an Employee of the Trust and who is otherwise a Disinterested Person.
"Management Company Subsidiary" means any corporation, partnership or other entity (other than the Management Company) in an unbroken chain beginning with the Management Company if all of them, in the aggregate, other than the last one in the unbroken chain, then own stock or other interests possessing 80 percent or more of the total combined economic interests or the total combined voting power of all classes of stock or other interests in each of the others in such chain.
"OP Units" means units of limited partnership interest of Ramco-Gershenson Properties, L.P., a Delaware limited partnership.
"Operating Partnership Subsidiary" means any corporation, partnership or other entity (other than the Operating Partnership) in an unbroken chain beginning with the Operating Partnership if all of them, in the aggregate, other than the last one in the unbroken chain, then own stock or other interests possessing 50 percent or more of the total combined economic interests or the total combined voting power of all classes of stock or other interests in each of the others in such chain.
"Option" or "Share Option" means any option to purchase Shares granted pursuant to Section 5 hereof.
"Predecessor Entities" means Resources Pension Shares 1, Resources Pension Shares 2, Resources Pension Shares 3, Integrated Resources Pension Shares 4, a California limited
partnership, Resources Pension Advisory Corp., and/or any of its affiliates, and Ramco-Gershenson, Inc., a Michigan corporation.
"Ramco Transaction" means the transaction to be effectuated by the Company, the Operating Partnership and Ramco-Gershenson, Inc. and its affiliates pursuant to the Amended and Restated Master Agreement dated as of December 27, 1995 (as amended, the "Master Agreement").
"Retirement" means an Employee's Termination of Employment after attainment of age 55 and completion of 15 years of continuous service to the Company and/or any other Employer and/or any Predecessor Entity as a Trustee or Employee.
"Share" means the shares of beneficial interest, par value $.10 per share, of the Company, subject to adjustments pursuant to Section 3 hereof.
"Share Ownership Limit" means the restrictions contained in the Company's Declaration of Trust provided that, subject to certain exceptions, no individual shareholder may own, or be deemed to own by virtue of the attribution provisions of the Code, more than 9.8 percent of the aggregate number or value of the Company's outstanding shares of beneficial interest.
"Subsidiary" means a Company Subsidiary, an Operating Partnership Subsidiary or a Management Company Subsidiary.
"Termination of Employment" means, subject to Section 7, the time when the employee-employer relationship between the Employer and an Employee is terminated for any reason or, if Employee is covered by an employment agreement, the time such employment agreement expires by its terms (provided such Employee does not continue to serve the Employer as an Employee); provided, however, that, if an Employer ceases to qualify as such under the Plan as a result of a sale of shares of beneficial interest or other interests or any similar event, a Termination of Employment of the Employees who were employed by such Employer immediately prior to such cessation shall be deemed to have occurred. Subject to the terms of any written employment agreement between an Employer and an Employee, the Committee, in its sole and absolute discretion, shall determine the effect of all other matters and questions relating to Termination of Employment, including, but not limited to, the question of whether a Termination of Employment resulted from Disability or for Cause, and, subject to Section 7 hereof, all questions of whether particular leaves of absence shall constitute Terminations of Employment.
"Trustees' Plan" means the RPS Realty Trust 1989 Trustees' Stock Option Plan, as amended from time to time.
SECTION 2. ADMINISTRATION OF PLAN; COMMITTEE AUTHORITY TO SELECT PARTICIPANTS AND DETERMINE AWARDS
(a) Committee. The Plan shall be administered by all of the members of the Compensation Committee of the Board who are Independent Trustees, or any other committee of not less than two Independent Trustees performing similar functions, as appointed by the Board from time to time. Each member of the Committee shall be a Disinterested Person and an "outside director" within the meaning of Section 162(m) of the Code and the regulations promulgated thereunder to the extent applicable.
(b) Powers of Committee. The Committee shall have the power and authority to grant Awards consistent with the terms of the Plan, including the power and authority:
(i) to select the officers and other Employees to whom Awards may from time to time be granted;
(ii) to determine the time or times of grant, and the extent to which, if any, Share Options are granted to any one or more participants;
(iii) to determine the number of Shares to be covered by any Award;
(iv) to determine and modify the terms and conditions, including restrictions, not inconsistent with the terms of the Plan, of any Award, which terms and conditions may differ among individual Awards and participants, and to approve the form of written instruments evidencing the Awards;
(v) to accelerate the exercisability or vesting of all or any portion of any Award;
(vi) subject to the provisions of Section 5(a)(iii), to extend the period in which Share Options may be exercised; and
(vii) to adopt, alter and repeal such rules, guidelines and practices for administration of the Plan and for its own acts and proceedings as it shall deem advisable; to interpret the terms and provisions of the Plan and any Award (including related written instruments); to make all determinations it deems advisable for the administration of the Plan; to decide all disputes arising in connection with the Plan; and to otherwise supervise the administration of the Plan.
All decisions and interpretations of the Committee shall be binding on all persons, including the Company and Plan participants.
SECTION 3. SHARES ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION
(a) Shares Issuable. The maximum number of Shares reserved and available for issuance under the Plan shall equal the difference between 9 percent of the total number of issued and outstanding shares of Stock (on a fully diluted basis assuming the exchange of all OP Units for Shares) and the number of Shares subject to options under the Existing Option Plan and the Trustees' Plan, calculated with respect to both clauses (i) and (ii) as of the Effective Date (which maximum amount equates to 855,054 Shares). For purposes of this limitation, the Shares underlying any Awards which are forfeited, cancelled, reacquired by the Company, satisfied without the issuance of Shares or otherwise terminated (other than by exercise) shall be added back to the shares of Shares available for issuance under the Plan so long as the participants to whom such Awards had been previously granted received no benefits of ownership of the underlying Shares to which the Award related. Subject to such overall limitation and except for the Initial Grants, Shares in respect of Awards granted under the Plan may be issued up to such maximum number, provided, however, that no more than 50,000 Share Options (plus, if applicable, any Initial Grant for 1996) may be granted to any one individual during any calendar year. The shares available for issuance under the Plan may be authorized buy unissued Shares or Shares reacquired by the Company.
(b) Dividends, Mergers, etc. In the event of a Share dividend, Share split or similar change in capitalization affecting the Shares, the Committee shall make appropriate adjustments in the number and kind of shares of Stock or securities on which Awards may thereafter be granted, the number and kind of shares remaining subject to outstanding Awards, and the option or purchase price in respect of such shares.
(c) Substitute Awards. The Committee may grant Awards under the Plan in substitution for stock and stock based awards held by employees of another corporation who concurrently become Employees as a result of a merger or consolidation of the employing corporation with the Company or a Subsidiary or the acquisition by the Company or a Subsidiary of property or stock of the employing corporation. The Committee may direct that the substitute awards be granted on such terms and conditions as the Committee considers appropriate in the circumstances.
SECTION 4. ELIGIBILITY
Participants in the Plan will be the persons listed on Exhibit A and such full or part-time officers and other key Employees who are responsible for or contribute to the management, growth or profitability of the Company and the other Employers and who are selected from time to time by the Committee, in its sole discretion.
SECTION 5. SHARE OPTIONS
Any Share Option granted under the Plan shall be in such form, and shall be evidenced by such written Option agreement, as the Committee may from time to time approve. Share Options granted under the Plan shall be non-qualified stock options and are not intended to qualify as "incentive stock options," as defined in Section 422 of the Code.
(a) Share Options Granted to Employees. Upon the adoption of the Plan by the Board, and subject to Section 11, the Share Options set forth on Exhibit A hereto shall be granted (the "Initial Grants"). Thereafter, the Committee in its discretion may grant Share Options to eligible Employees of the Company or any other Employer.
Share Options granted to Employees pursuant to this Section 5(a) shall be subject to the following terms and conditions and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, as the Committee shall deem desirable:
(i) Exercise Price. The exercise price per share for the Shares covered by a Share Option granted pursuant to this Section 5(a) shall be determined by the Committee at the time of grant but shall not be less than 100% of the Fair Market Value on the date of grant; provided that, the exercise price per share for the Shares covered by a Share Option granted as part of the Initial Grants shall be equal to the OPV (as defined in the Master Agreement) per Share.
(ii) Grant of Discount Options in Lieu of Cash Bonus. If authorized by the Committee, upon the request of an eligible Employee and with the consent of the Committee, such Employee may elect each calendar year to receive a Share Option in lieu of a cash bonus to which he may become entitled during the following calendar year pursuant to any other plan of the Company or any other Employer, but only if such Employee makes an irrevocable election to waive receipt of all or a portion of such cash bonus. Such election shall be made on or before the date set by the Committee which date shall be no later than 15 days preceding January 1 of the calendar year in which the cash bonus would otherwise be
paid. A Share Option shall be granted to each Employee who makes such an irrevocable election on the date the waived cash bonus would otherwise have been paid; provided, however, that with respect to an Employee who is subject to Section 16 of the Act, if such grant date is not at least six months and one day from the date of the election, the grant shall be delayed until the date which is six months and one day from the date of the election (or the next following business day, if such date is not a business day). The exercise price per share shall be determined by the Committee but shall not be less than 50% of the Fair Market Value of the Shares on the date the Share Option is granted. The number of Shares subject to the Share Option shall be determined by dividing the amount of the waived cash bonus by the difference between the Fair Market Value of the Shares on the date the Share Option is granted and the exercise price per Share Option. The Share Option shall be granted for a whole number of shares so determined; the value of any fractional share shall be paid in cash. An Employee may revoke his election under this Section 5(a)(ii) on a prospective basis at any time; provided, however, that with respect to an Employee who is subject to Section 16 of the Act, such revocation shall only be effective six months and one day following the date of such revocation.
(iii) Option Term. The term of each Share Option shall be fixed by the Committee at the time of grant but shall in no event be longer than 10 years from the date of grant; provided, however, the term of the Initial Grants shall be 10 years from the date the Ramco Transaction is consummated.
(iv) Exercisability; Rights of a Stockholder. Share Options shall become vested and exercisable at such time or times, whether or not in installments, as shall be determined by the Committee at or after the grant date; provided, however, that Share Options granted as part of the Initial Grants shall become vested and exercisable in equal installments on each of the first, second and third anniversaries of the consummation of the Ramco Transaction and Share Options granted in lieu of a cash bonus shall be exercisable immediately. The Committee may at any time accelerate the exercisability of all or any portion of any Share Option. An optionee shall have the rights of a stockholder only as to Shares acquired upon the exercise of a Share Option and not as to unexercised Share Options.
(v) Method of Exercise.
(A) Share Options may be exercised in whole or in part, by giving written notice of exercise to the Secretary of the Company (or its delegate), specifying the number of
shares to be purchased and payment in full of the purchase price. A copy of such notice shall be delivered at the same time to the Operating Partnership if the optionee is an Employee of the Operating Partnership or an Operating Partnership Subsidiary, and to the Management Company if the optionee is an Employee of the Management Company or a Management Company Subsidiary. The delivery of certificates representing the shares of Stock to be purchased pursuant to the exercise of a Share Option will be contingent upon receipt by the Company of the full purchase price for such shares and the fulfillment of any other requirements contained in the Share Option agreement or applicable provisions of laws.
(B) Payment of the purchase price may be made by one or more of the following methods:
(1) In cash, by certified or bank check or other instrument acceptable to the Committee;
(2) In the form of Shares that are not then subject to restrictions under any Employer plan and that have been held by the optionee for at least six months, if permitted by the Committee in its discretion. Such surrendered Shares shall be valued at Fair Market Value on the exercise date; or
(3) By the optionee delivering a properly executed exercise notice together with irrevocable instructions to a broker to promptly deliver cash or a check acceptable to the Committee to pay the purchase price; provided that in the event the optionee chooses to pay the purchase price as so provided, the optionee and the broker shall comply with such procedures and enter into such agreements of indemnity and other agreements as the Committee shall prescribe as a condition of such payment procedure. Payment instruments will be received subject to collection.
Such payment of the purchase price shall be made to (x) the Secretary of the Company (or its delegate) with respect to an Option of an Employee of the Company or a Company Subsidiary, (y) the Operating Partnership with respect to an Option of an Employee of the Operating Partnership or an Operating Partnership Subsidiary, and (z) the Management Company with respect to an Option of an Employee of the Management Company or a Management Company Subsidiary.
(C) If the Share Option being exercised is one granted to an Employee of the Company or a Company Subsidiary, the
Company shall sell such Shares to the optionee in return for the purchase price paid to it by the optionee.
(D) If the Share Option being exercised is one granted to an Employee of the Operating Partnership or an Operating Partnership Subsidiary, as soon as practicable after the Operating Partnership receives payment of the purchase price pursuant to Section 5(a)(v)(B):
(1) the Company shall sell to the Operating Partnership and the Operating Partnership shall purchase the number of Shares for which such Option is being exercised for an aggregate purchase price equal to the product of (x) such number of Shares multiplied by (y) the Fair Market Value of a Share on the date of the exercise; and
(2) The Operating Partnership shall sell such Shares to the optionee in return for the purchase price paid to it by the optionee.
(E) If the Share Option being exercised is one granted to an Employee of the Management Company or a Management Company Subsidiary, as soon as practicable after the Management Company receives payment of the purchase price pursuant to Section 5(a)(v)(B):
(1) the Company shall sell to the Management Company and the Management Company shall purchase the number of Shares for which such Option is being exercised for an aggregate purchase price equal to the product of (x) such number of Shares multiplied by (y) the Fair Market Value of a Share on the date of the exercise; and
(2) the Management Company shall sell such Shares to the optionee in return for the purchase price paid to it by the optionee.
(vi) Non-Transferability of Options. No Share Option shall be transferable by the optionee otherwise than by will or by the laws of descent and distribution and all Share Options shall be exercisable, during the optionee's lifetime, only by the optionee. Notwithstanding the foregoing, the Committee may provide in an Option agreement that the optionee may transfer, without consideration for the transfer, his Share Options to members of his immediate family (i.e., children, grandchildren, or spouse), to trusts for the benefit of such immediate family members and to partnerships in which such family members are the only parties.
(vii) Termination of Employment by Reason of Death. Upon an optionee's Termination of Employment by reason of death, any Share Option held by him shall become fully exercisable and may thereafter be exercised (in whole or in part) by the legal representative or legatee of the optionee, for a period of one year (or such longer period as the Committee shall specify at any time) from the date of death, or until the expiration of the stated term of the Option, if earlier, at which time all rights of the optionee's legal representative or legatee in such Share Option shall terminate.
(viii) Termination of Employment by Reason of Disability.
(A) Any Share Option held by an optionee whose Termination of Employment is by reason of Disability shall become fully exercisable and may thereafter be exercised (in whole or in part), for a period of one year (or such longer period as the Committee shall specify at any time) from the date of such Termination of Employment, or until the expiration of the stated term of the Option, if earlier, at which time all of the optionee's rights in such Share Option shall terminate.
(B) Except as otherwise provided by the Committee at the time of grant, the death of an optionee during a period provided in this Section 5(a)(viii) for the exercise of a Share Option shall extend such period for six additional months, subject to termination on the expiration of the stated term of the Option, if earlier.
(ix) Termination of Employment by Reason of Retirement.
(A) Any Share Option held by an optionee whose Termination of Employment is by reason of Retirement may thereafter be exercised, to the extent it was exercisable at the time of such termination, for a period of five years (or such longer period as the Committee shall specify at any time) from the date of such termination of employment, or until the expiration of the stated term of the Option, if earlier, at which time all of the optionee's rights in such Share Option shall terminate.
(B) Except as otherwise provided by the Committee at the time of grant, the death of an optionee during a period provided in this Section 5(a)(ix) for the exercise of a Share Option shall extend such period for six additional months, subject to termination on the expiration of the stated term of the Option, if earlier.
(x) Termination of Employment for Cause. If any optionee's Termination of Employment is for Cause, any Share Option held by such optionee, including any Share Option that is immediately exercisable at the time of such termination, shall immediately terminate and be of no further force and effect; provided, however, that the Committee may, in its sole discretion, provide that such Share Option can be exercised for a period of up to 30 days from the date of Termination of Employment or until the expiration of the stated term of the Option, if earlier.
(xi) Other Termination of Employment. Unless otherwise determined by the Committee, and except as provided in any written employment agreement between the optionee and any Employer if an optionee's Termination of Employment is for any reason other than death, Disability, Retirement, or for Cause, any Share Option held by such optionee may thereafter be exercised, to the extent it was exercisable on the date of Termination of Employment, for one year (or such other period as the Committee shall specify at any time) from the date of Termination of Employment or until the expiration of the stated term of the Option, if earlier, at which time all of the optionee's rights in such Share Option shall terminate.
(xii) Form of Settlement. Shares issued upon exercise of a Share Option shall be free of all restrictions under the Plan, except as otherwise provided in this Plan.
(b) Reload Options. At the discretion of the Committee, Options granted under Section 5(a) may include a so-called "reload" feature pursuant to which an optionee exercising an Option by the delivery of a number of Shares in accordance with Section 5(a)(v)(B)(2) hereof would automatically be granted an additional Option (with an exercise price equal to the Fair Market Value of the Shares on the date the additional Option is granted and with the same expiration date as the original Option being exercised, and with such other terms as the Committee may provide) to purchase that number of Shares equal to the number delivered to exercise the original Option.
SECTION 6. TAX WITHHOLDING
(a) Payment by Participant. The Company and any other Employer shall have the right to require that each optionee shall, no later than the date as of which the value of an Award received thereunder first becomes includible in the gross income of the optionee for Federal income tax purposes, pay to the Company or the Employer, or make arrangement satisfactory to the Company or the Employer regarding payment of, any Federal, state, or local taxes of any kind required by law to be withheld with respect to such income. The Company and the other Employers
shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the participant.
(b) Payment in Shares. If withholding is required by the Company or any other Employer, an optionee may elect to have such tax withholding obligation satisfied, in whole or in part, by authorizing the Employer to withhold from Shares to be issued pursuant to any Award a number of shares with an aggregate Fair Market Value (as of the date the withholding is effected) that would satisfy the withholding amount due, or transferring to the Employer Shares owned by the optionee with an aggregate Fair Market Value (as of the date the withholding is effected) that would satisfy the withholding amount due. With respect to any optionee who is subject to Section 16 of the Act, the following additional restrictions shall apply:
(A) the election to satisfy tax withholding obligations relating to an Award in the manner permitted by this Section 6(b) shall be made either during the period beginning on the third business day following the date of release of quarterly or annual summary statements of revenues of the Company and ending on the twelfth business day following such date, or at least six months prior to the date as of which the receipt of such an Award first becomes a taxable event for Federal income tax purposes;
(B) such election shall be irrevocable;
(C) such election shall be subject to the consent or disapproval of the Committee; and
(D) the Shares withheld to satisfy tax withholding must pertain to an Award which has been held by the optionee for at least six months from the date of grant of the Award.
SECTION 7. TRANSFER, LEAVE OF ABSENCE, ETC.
For purposes of the Plan, the following events shall not be deemed a Termination of Employment:
(a) a transfer to the employment of another Employer, or
(b) an approved leave of absence for military service or sickness, or for any other purpose approved by the Employer, if the Employee's right to re-employment is guaranteed either by a statute or by contract or under the policy pursuant to which the leave of absence was granted or if the Committee otherwise so provides in writing.
SECTION 8. AMENDMENTS AND TERMINATION
The Board may, at any time, amend or discontinue the Plan and the Committee may, at any time, amend or cancel any outstanding Award (or provide substitute Awards at the same or reduced exercise or purchase price or with no exercise or purchase price, but such price, if any, must satisfy the requirements which would apply to the substitute or amended Award if it were then initially granted under this Plan) for the purpose of satisfying changes in law or for any other lawful purpose, but no such action shall adversely affect rights under any outstanding Award without the holder's consent. To the extent required by the Act to ensure that Options granted under the Plan are exempt under Rule 16b-3 promulgated under the Act and can qualify as performance-related compensation for purposes of Section 162(m) of the Code, Plan amendments shall be subject to approval by the Company's shareholders.
SECTION 9. CHANGE OF CONTROL PROVISIONS
Upon the occurrence of a Change of Control as defined in this Section 9:
(a) Each outstanding Share Option shall automatically become fully exercisable notwithstanding any provision to the contrary herein. Unless provision is made in connection with the Change in Control for the assumption of Share Options theretofore granted, or the substitution of such Share Options with new options of the successor entity, with appropriate adjustment as to the number and kind of shares and the per share exercise prices, each optionee who has not had a Termination of Employment holding an outstanding Share Option shall receive payment from the Company in an amount equal to the excess of the Fair Market Value per share as of the date the Change of Control occurred over the applicable exercise price multiplied by the number of Shares covered by the Share Option within 30 days after the occurrence of the Change of Control.
(b) "Change of Control" shall mean the occurrence of any one of the following events:
(i) any "person," as such term is used in Sections 13(d) and 14(d) of the Act (other than the Company, any of its Subsidiaries, any trustee, fiduciary or other person or entity holding securities under any employee benefit plan of the Company or any of its Subsidiaries), together with all "affiliates" and "associates" (as such terms are defined in Rule 12b-2 under the Act) of such person, shall become the "beneficial owner" (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, of securities of the Company representing 40% or more of either (A) the combined voting power of the Company's then outstanding securities
having the right to vote in an election of the Company's Board of Trustees ("Voting Securities") or (B) the then outstanding Shares of the Company (in either such case other than as a result of acquisition of securities directly from the Company); or
(ii) persons who, as of the Effective Date of the Plan, constitute the Company's Board of Trustees (the "Incumbent Trustees") cease for any reason, including, without limitation, as a result of a tender offer, proxy contest, merger or similar transaction, to constitute at least a majority of the Board, provided that any person becoming a director of the Company subsequent to the Effective Date whose election or nomination for election was approved by a vote of at least a majority of the Incumbent Trustees shall, for purposes of this Plan, be considered an Incumbent Trustee; or
(iii) the shareholders of the Company shall approve any consolidation or merger of the Company or any Subsidiary where the shareholders of the Company, immediately prior to the consolidation or merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d-3 under the Act), directly or indirectly, shares representing in the aggregate 50% of the voting shares of the corporation issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any), (B) any sale, lease, exchange or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company or (C) any plan or proposal for the liquidation or dissolution of the Company.
Notwithstanding the foregoing, a "Change of Control" shall not be deemed to have occurred for purposes of the foregoing clause (i) solely as the result of an acquisition of securities by the Company which, by reducing the number of shares of Share of other Voting Securities outstanding, increases (x) the proportionate number of Shares beneficially owned by any person to 40% or more of the Shares then outstanding or (y) the proportionate voting power represented by the Voting Securities beneficially owned by any person to 40% or more of the combined voting power of all then outstanding Voting Securities; provided, however, that if any person referred to in clause (x) or (y) of this sentence shall thereafter become the beneficial owner of any additional Shares or other Voting Securities (other than pursuant to a share split, stock dividend, or similar transaction), then a "Change of Control" shall be deemed to have occurred for purposes of the foregoing clause (i).
SECTION 10. GENERAL PROVISIONS
(a) No Distribution; Compliance with Legal Requirements. The Committee may require each person acquiring Shares pursuant to an Award to represent to and agree with the Company in writing that such person is acquiring the shares without a view to distribution thereof.
No Shares shall be issued pursuant to an Award until all applicable securities law and other legal and stock exchange requirements have been satisfied. The Committee may require the placing of such stop-orders and restrictive legends on certificates for Awards as it deems appropriate.
(b) Ownership Restrictions.
No Shares shall be issued pursuant to an Award if, in the sole and absolute discretion of the Committee, such issuance would likely result in any of the following:
(i) The recipient's ownership of Shares being in violation of the Share Ownership Limit; or
(ii) Income to the Company that could impair the Company's status as a real estate investment trust, within the meaning of Sections 856 through 860 of the Code.
Notwithstanding any other provision of the Plan, no person shall have any rights under this Plan to acquire Shares which would otherwise be prohibited under the Company's Declaration of Trust.
(c) Delivery of Stock Certificates. Delivery of share certificates to optionees under this Plan shall be deemed effected for all purposes when the Company or a stock transfer agent of the Company shall have delivered such certificates in the United States mail, addressed to the optionee, at the optionee's last known address on file with the Company.
(d) Other Compensation Arrangement; No Employment Rights. Nothing contained in this Plan shall prevent the Board or any of the Employers from adopting other or additional compensation arrangements, including trusts, subject to shareholder approval if such approval is required; and such arrangements may be either generally applicable or applicable only in specific cases. The adoption of the Plan and the grant of Awards do not confer upon any Employee any right to continued employment with the Company or any other Employer.
SECTION 11. EFFECTIVE DATE OF PLAN
The Plan shall become effective upon (i) adoption by the Board, (ii)
approval by the holders of a majority of the shares of Shares of the Company
present or represented and entitled to vote at a meeting of shareholders and
(iii) consummation of the Ramco Transaction (the "Effective Date").
SECTION 12. GOVERNING LAW
This Plan shall be governed by Massachusetts law except to the extent such law is preempted by federal law.
EXHIBIT A
Employee Option Grant - -------- ------------ Dennis Gershenson . . . . . . . . . . . . . . . . . . . 24,000 Bruce Gershenson. . . . . . . . . . . . . . . . . . . . 24,000 Richard Gershenson. . . . . . . . . . . . . . . . . . . 24,000 Joel Gershenson . . . . . . . . . . . . . . . . . . . . 24,000 Michael A. Ward . . . . . . . . . . . . . . . . . . . . 24,000 |
EXHIBIT 10.5
RPS REALTY TRUST
747 Third Avenue
New York, New York 10017
May 10, 1996
To the Persons and Entities
Party to the Master Agreement
defined below and Signatory Hereto
c/o Ramco-Gershenson, Inc.
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
Re: Closing of the Ramco Acquisition and Related Transaction
Gentlemen:
Reference is made to the Amended and Restated Master Agreement, dated as of December 27, 1995, as amended by the First Amendment to Amended and Restated Master Agreement, dated as of March 19, 1996, among RPS Realty Trust, a Massachusetts business trust (the "Trust"), Ramco-Gershenson, Inc., a Michigan corporation ("Ramco"), Dennis Gershenson, Joel Gershenson, Bruce Gershenson, Richard Gershenson, Michael A. Ward, Michael A. Ward, Trustee U/T/A dated 2/22/77, as amended (collectively, the Ramco Principals"), Ramco-Gershenson Properties, L.P., a Delaware limited partnership (the "Operating Partnership"), and the Ramco affiliates listed on Schedule A thereto (the "Ramco Contributing Parties") (as amended, the "Master Agreement"). Capitalized terms used, but not defined, in this letter agreement (the "Letter Agreement") shall have the respective meanings set forth in the Master Agreement.
This Letter Agreement is intended to and shall be a legally enforceable agreement and shall be binding upon the parties signatory hereto. In connection with today's closing of the transactions contemplated by the Master Agreement (collectively, the "Transactions"), this Letter Agreement sets forth the parties' agreement to proceed with the consummation of the Transactions on the following additional, amended or modified terms and conditions:
1. Master Agreement. To the extent any term or provision of this Letter Agreement is supplemental or contrary to, or is otherwise inconsistent with, the terms and conditions of the Master Agreement, the Ramco Agreements or the RPS Contribution Agreements (collectively, the "Transaction Documents"), this Letter Agreement shall be deemed to amend, supplement or modify the Master Agreement, as applicable, and the terms and conditions of this Letter Agreement shall in all such cases control.
2. Indemnification by Ramco Principals. (a) Notwithstanding anything to the contrary set forth in the Transaction Documents, the Ramco Principals shall be jointly and severally liable (for
indemnification or otherwise) with respect to any failure or breach of any representation, warranty, covenant, agreement or obligation of the Ramco Group under any of the Transactions Documents except that the Ramco Principal's aggregate liability with respect to any such failure or breach shall be limited to an aggregate of the greater of $16,000,000 and the value of the Pledged Collateral (as such term is defined in the Pledge Agreement) determined, as of the date any claim against the Ramco Principals is compromised or settled by the parties or determined by a court of competent jurisdiction, based on the Value (as such term is defined in the Exchange Rights Agreement dated the date hereof among the Trust and the members of the Ramco Group which are a party thereto) of the Shares at such time. Any limitation on liability set forth in the proceeding sentence shall not limit claims against the Ramco Principals with respect to any Ramco Group intentional misrepresentation or intentional breach of warranty or intentional failure to perform and comply with any covenant, agreement or obligation and the Ramco Principals shall be liable with respect to all Damages with respect thereto. The Ramco Principals liability under this paragraph 2, remains subject to the limitations set forth in Sections 7.2 and 7.3(a) of the Master Agreement.
(b) Notwithstanding anything herein or in any Transaction Document to the contrary, the parties hereto acknowledge and agree that (a) it is not (and at no time will be) necessary for the Trust, in order to enforce any of its rights and remedies under any Transaction Document, to first institute or exhaust the Trust's rights and remedies against any Ramco Principal, any holder of an interest in the Operating Partnership ("Holders") or against any of the Pledged Collateral (as defined in the Pledge Agreement), in each case, pursuant to the Pledge Agreement, and (b) any delay in exercising, failure to exercise, or non-exercise (or partial exercise), from time to time, by the Trust of any rights or remedies under the Pledge Agreement (or to insist upon strict performance) in any one or more instances shall not constitute a waiver thereof (or preclude full exercise or insistence upon strict performance thereof) in that or any other instance, and any single exercise of the Trust's rights or remedies under the Pledge Agreement in any one or more instances shall not preclude full exercise in any other instance.
3. Pashcow Termination Agreement and Deferred Payment. (a) At the Closing, the Operating Partnership shall borrow $3,950,000 under the Line of Credit (as defined below), the proceeds of which will be used by the Operating Partnership (on behalf of the Trust) or RPS Mortgage (as applicable) to pay certain Excluded Expenses and provide working capital to RPS Mortgage, as directed by the Trust (the "Closing Loan").
(b) The parties to the Master Agreement hereby waive the condition set forth in Section 3.1(f) of the Master Agreement with respect to the amounts payable under Section 3(b)(ii) of the Termination Agreement between the Trust and Joel M. Pashcow dated March 26, 1996 (the "Pashcow Obligation"). Neither the Pashcow Obligation nor the Note (as defined below) shall be taken into account for purposes of making the adjustments set forth in Section 1.10. Nothing herein is intended to absolve the Trust of its obligation to pay Joel M. Pashcow any amounts owed to him under such agreement and the Trust acknowledges that the payment of such amount is not subject to any right of set off or any right to interpose counterclaims or crossclaims.
(c) At the Closing, RPS Mortgage shall execute and deliver to the Trust a note (the "Note") in the original principal amount of $5,550,000, in the form set forth as Schedule 1 hereof, which is secured by a Collateral Agreement in the form set forth in Schedule 2 hereof, in consideration of the Closing Loan and the Trust's continuing liability under the Pashcow Obligation.
(d) The Ramco Principals shall use their best efforts to cause the minimum amount available under the Line of Credit (without regard to borrowings under such Line of Credit that occur at or following the Closing) to equal at least $50,000,000.
(e) For purposes of this letter agreement, the Line of Credit shall mean the Master Revolving Credit Agreement, dated as of May 6, 1996, by and among the Operating Partnership, the Trust and the other lending institutions which may become parties thereto, and First National Bank of Boston, as Agent for the Banks.
4. Reimbursement of Development Land Expenses. The Ramco Principals and the Ramco Contributing Parties consent and agree with the Trust that at no time shall the Operating Partnership reimburse the appropriate Affiliates of Ramco for third party out-of-pocket expenses incurred by such Affiliates related to options on the Development Land listed on schedule 1.1(b) to the Master Agreement (but only to the extent such Affiliates are entitled to such reimbursement under Section 1.13 of the Master Agreement) unless and until (i) the funds available under the Line of Credit (assuming that no funds are drawn down by the Operating Partnership under such Line of Credit) equal or exceed $50,000,000, and (ii) such Affiliates have presented reasonably detailed documentation evidencing the occurrence of thereof, which documentation and the amount of such out-of-pocket expenses are verified and approved by the Trust's Independent Trustees. The Independent Trustees shall be entitled to retain, at the Trust's expense, an independent Person to verify such documentation and the amount of such expenses.
5. Representations and Warranties of Sources and Uses. (a) The Ramco Principals, jointly and severally, represent and warrant to, and agree with, the Trust that (i) attached hereto as Schedule 3 is a true, correct and complete copy of the Ramco Group's "sources and uses" statement relating to the RPS Cash, the mortgage payoffs detailed therein and generally with respect to the closing of the several contributions to the Operating Partnership by the Ramco Contributing Parties and by the Trust, in all cases as contemplated by the Master Agreement, and (ii) attached hereto as Schedule 4 is a true, correct and complete copy of the Ramco Group's "sources and uses" statement relating to the closing of the several contributions to the Operating Partnership by the Ramco Contributing Parties, as contemplated by the Master Agreement. The representations and warranties made in this paragraph shall be deemed for all purposes as representations and warranties under Section 4 of the Master Agreement.
(b) The Trust represents and warrants to the Ramco Group that attached hereto as Schedule 5 is a true, correct and complete copy of the Trust's statement of transaction expenses (other the Excluded Expenses) that have been incurred through the Closing. The representation and warranty set forth in this paragraph shall be deemed for all purposes as a representation and warranty under Section 5 of the Master Agreement.
6. Prorations and Adjustments Procedures. The parties agree that the real estate related prorations and adjustments contemplated by the Transaction Documents that are required or scheduled to be made after the Closing shall be in accordance with the procedures set forth in Schedule 6. Unless otherwise indicated, all such prorations and adjustments shall be made as if the Closing occurred as of May 1, 1996. The Independent Trustees shall review and approve all such prorations and adjustments, including those prorations and adjustments made at the Closing. The Independent Trustees shall be entitled to retain, at the Trust's expense, an independent Person to assist them in reviewing and approving
such prorations and adjustments. To the extent such prorations and adjustments result in any payments to the Trust, such amounts will be distributed to the Trust's shareholders in the distribution to shareholders that immediately follows the receipt of such amounts.
7. Use of RPS Cash. (a) The parties agree that Section 12.1(b) of the Master Agreement is amended by deleting the amount $3,200,000 in such Section and replacing it with the amount $3,605,279. The Ramco Principals represent and warrant to, and agree with the Trust that, the Operating Partnership will have cash on hand (without regard to amounts available under the Line of Credit and amounts identified on the closing statements to be used by the Trust or the Operating Partnership to pay Excluded Expenses) an amount equal to $3,558,450 to pay expenses relating to the Transactions.
8. New York Office Lease. At the Closing, (i) the space lease (the "New York Office Lease") relating to the Trust's principal place of business in New York City shall not be assigned to RPS Mortgage and (ii) the Trust shall enter into a sublease with RPS Mortgage with respect to 100% of the space covered by the New York Office Lease. The Trust represents and warrants to the Ramco Group that the New York Office Lease expires on April 30, 1997.
9. Non-conforming Loans. The Ramco Principals, jointly and severally, represent and warrant to, and agree with, the Trust that set forth on Schedule 7 is a true, correct and complete copy of the analysis which illustrates the economic impact (including, without limitation, the impact on cash available from distribution) on the Trust of the terms of the West Oaks II Loan and the Spring Meadows Loan which do not conform to the terms set forth in Section 3.3(c)(ii) and (iii) of the Master Agreement.
10. Waivers. The Closing of the Transactions shall for all purposes hereunder be deemed a waiver in writing of any condition to Closing which has not been satisfied at or prior to such Closing.
11. Special Distributions. Notwithstanding anything to the contrary set forth in the Master Agreement, any distributions or dividends that are contemplated in the Master Agreement to be made to the Trust's shareholders of record as of the day prior to the Closing Date (other than the dividend or distribution relating to the shares in RPS Mortgage) shall instead be made to the Trust's shareholders as of the record date which is established by the Board of Trustees for distributions to shareholders after the receipt of the funds or assets which were the subject of such special distribution.
12. Kohl's Lease. The Ramco Principals hereby acknowledge their obligation to satisfy in full in cash the landlord's obligations under Section 3.5 of the Kohl's Lease.
13. Miscellaneous
A. Specific Performance. The parties acknowledge that the subject matter of this Letter Agreement is unique and that no adequate remedy of law would be available for breach of this Letter Agreement. Accordingly, each party agrees that the other parties will be entitled to an appropriate decree
of specific performance or other equitable remedies to enforce this Letter Agreement (without any bond or other security being required) and each party waives the defense in any action or proceeding brought to enforce this Letter Agreement that there exists an adequate remedy at law.
B. Captions. The captions in this Letter Agreement are for convenience of reference only and shall not be given any effect in the interpretation of this Letter Agreement.
C. No Waiver. The failure of a party to insist upon strict adherence to any term of this Letter Agreement on any occasion shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Letter Agreement. Any waiver must be in writing.
D. Amendment. This Letter Agreement cannot be changed or terminated except by a written instrument executed by the party or parties against whom enforcement thereof is sought.
E. Counterparts. This Letter Agreement may be executed in two or more counterparts, each of which shall be considered an original, but all of which together shall constitute the same instrument.
F. Governing Law. This Letter Agreement and (unless otherwise provided) all amendments hereof and waivers and consents hereunder shall be governed by the internal laws of the State of New York, without regard to the conflicts of law principles thereof.
IN WITNESS WHEREOF, the parties have executed this Letter Agreement and caused the same to be delivered on their behalf on May 10, 1996
RPS REALTY TRUST
By: /s/ Stephen R. Blank ---------------------------------- Name: Stephen R. Blank Title: Trustee |
RAMCO GERSHENSON, INC.
By: /s/ Dennis Gershenson ---------------------------------- Name: Dennis Gershenson Title: Chief Executive Officer /s/ Dennis Gershenson -------------------------------------- Dennis Gershenson /s/ Richard Gershenson -------------------------------------- Richard Gershenson /s/ Bruce Gershenson -------------------------------------- Bruce Gershenson /s/ Joel Gershenson -------------------------------------- Joel Gershenson /s/ Michael A. Ward -------------------------------------- Michael A. Ward |
MICHAEL A. WARD U/T/A DATED 2/22/77,
AS AMENDED
By: /s/ Michael A. Ward
-----------------------------------
Michael A. Ward as trustee
U/T/A dated 2/22/77, as amended
|
RAMCO-GERSHENSON PROPERTIES, L.P.
By: RAMCO REIT, INC., its
General Partner
By: /s/ Dennis Gershenson ----------------------------- Name: Dennis Gershenson Title: |
RAMCO CONTRIBUTING PARTIES
TO THE EXTENT OF SECTIONS 1, 2, 3, 6, 7, 8,
9, 10, 11 and 12
KM BLUE ASH DEVELOPMENT COMPANY,
an Ohio co-partnership
By: /s/ Bruce Gershenson ---------------------------------- Bruce Gershenson Partner |
LA II GROUP, an Ohio general partnership
By: RAMCO LEWIS ALEXIS ASSOCIATES,
a Michigan general partnership,
its Partner
By: /s/ Bruce Gershenson ------------------------------- Bruce Gershenson Partner |
MICHIGAN SHOPPING CENTER VENTURES
II LIMITED PARTNERSHIP, a Michigan
limited partnership
By: RAMCO L & W PARTNERS
a Michigan co-partnership,
its General Partner
By: RAMCO CP, a Michigan
co-partnership, its Partner
By: /s/ Bruce Gershenson --------------------------- Bruce Gershenson Partner |
RAMCO CANTON CO.,
a Delaware general partnership
By: FORD SHELDON PLAZA COMPANY,
a Michigan limited partnership, its Partner
By: /s/ Bruce Gershenson ------------------------------------ Bruce Gershenson General Partner |
RAMCO FRASER DEVELOPMENT
COMPANY, a Michigan co-partnership
By: /s/ Bruce Gershenson ----------------------------------------- Bruce Gershenson Partner |
RAMCO JACKSON DELAWARE LIMITED
PARTNERSHIP, a Delaware limited partnership
By: RAMCO JACKSON, INC.,
a Michigan corporation,
its General Partner
By: /s/ Bruce Gershenson -------------------------------- Bruce Gershenson Vice President |
RAMCO KENTWOOD ASSOCIATES
a Michigan co-partnership
By: /s/ Bruce Gershenson ----------------------------------- Bruce Gershenson Partner |
RAMCO LANSING ASSOCIATES,
a Michigan co-partnership
By: /s/ Bruce Gershenson ----------------------------------- Bruce Gershenson Partner |
RAMCO LAPEER ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited partnership
By: RAMCO LAPEER, INC., a Michigan
corporation, its General Partner
By: /s/ Bruce Gershenson -------------------------------- Bruce Gershenson Vice President |
RAMCO NOVI I CO.,
a Delaware general partnership
By: WEST OAKS DEVELOPMENT
COMPANY, a Michigan co-partnership,
its Partner
By: /s/ Bruce Gershenson ----------------------------------- Bruce Gershenson Partner |
RAMCO NOVI II CO.,
a Delaware general partnership
By: RAMCO NOVI DEVELOPMENT
ASSOCIATES LIMITED PARTNERSHIP,
a Michigan limited partnership, its Partner
By: RAMCO NOVI DEVELOPMENT
COMPANY, a Michigan
co-partnership, its General Partner
By: /s/ Bruce Gershenson
-----------------------------------
Bruce Gershenson
Partner
|
RAMCO OAK BROOK SQUARE
ASSOCIATES LIMITED PARTNERSHIP,
a Michigan limited partnership
By: RAMCO OAK BROOK SQUARE, INC.,
a Michigan corporation,
its General Partner
By: /s/ Bruce Gershenson --------------------------------- Bruce Gershenson Vice President |
RAMCO ORION CO.,
a Delaware general partnership
By: W & G REALTY COMPANY,
a Michigan co-partnership, its Partner
By: /s/ Bruce Gershenson -------------------------------------- Bruce Gershenson Partner |
RAMCO ROSEVILLE CO.,
a Delaware general partnership
By: ROSEVILLE PLAZA LIMITED
PARTNERSHIP
By: RAMCO VENTURES, a Michigan
co-partnership, its General Partner
By: /s/ Bruce Gershenson ----------------------------------- Bruce Gershenson Partner |
RAMCO SINGER ASSOCIATES LIMITED
PARTNERSHIP, an Ohio limited partnership
By: RAMCO TROY ASSOCIATES,
a Michigan co-partnership, its
General Partner
By: /s/ Bruce Gershenson ------------------------------ Bruce Gershenson Partner |
RAMCO SOUTHFIELD CO.,
a Delaware general partnership
By: SOUTHFIELD PLAZA LIMITED
PARTNERSHIP, a Michigan
limited partnership, its Partner
By: RAMCO VENTURES, a Michigan
co-partnership, its General Partner
By: /s/ Bruce Gershenson ----------------------------------- Bruce Gershenson Partner |
RAMCO STERLING MALL CO.,
a Delaware general partnership
By: STERLING MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership, its Partner
By: RAMCO CONSUMER MALL
ASSOCIATES LIMITED
PARTNERSHIP, a Michigan limited
partnership, its General Partner
By: /s/ Bruce Gershenson ----------------------------------- Bruce Gershenson General Partner |
SOUTHFIELD PLAZA LIMITED
PARTNERSHIP, a Michigan limited partnership
By: RAMCO VENTURES, a Michigan general
partnership, its General Partner
By: /s/ Bruce Gershenson ---------------------------------- Bruce Gershenson Partner |
SPRING MEADOWS SHOPPING CENTER
ASSOCIATES, an Ohio general partnership
By: RAMCO SPRING MEADOWS
ASSOCIATES, a Michigan co-partnership,
its Partner
By: /s/ Bruce Gershenson -------------------------------------- Bruce Gershenson Partner |
WEST ALLIS SHOPPING CENTER
ASSOCIATES, a Wisconsin general partnership
By: RAMCO ALLIS DEVELOPMENT
COMPANY, a Michigan co-partnership,
its Partner
By: /s/ Bruce Gershenson ----------------------------------- Bruce Gershenson Partner |
RAMCO SOUTH NAPLES DEVELOPMENT,
a Florida general partnership
By: /s/ Bruce Gershenson
-----------------------------
Bruce Gershenson
Partner
|
RAMCO STERLING STRIP CO.,
a Delaware general partnership
By: KMW STERLING DEVELOPMENT COMPANY,
a Michigan co-partnership, its
partner
By: /s/ Bruce Gershenson
--------------------------
Bruce Gershenson
Partner
|
RAMCO TEL-TWELVE CO.,
a Delaware general partnership
By: TEL-TWELVE MALL ASSOCIATES
LIMITED PARTNERSHIP,
a Michigan limited partnership,
its partner
By: /s/ Bruce Gershenson
---------------------------
Bruce Gershenson
Partner
|
EXHIBIT 10.6
PROMISSORY NOTE
$5,550,000.00 Place of Execution: New York, New York Maturity Date: November 9, 1997 Date of Note: May 10, 1996
INDEBTEDNESS
FOR VALUE RECEIVED, the undersigned, ATLANTIC REALTY TRUST, a Maryland real estate investment trust ("Borrower"), promises to pay to the order of RAMCO-GERSHENSON PROPERTIES, L.P., a Delaware limited partnership ("Holder"), at its offices at 27600 Northwestern Highway, Suite 200, Southfield, Michigan 48034, or at such other place as the Holder hereof may designate in writing from time to time, the principal sum of Five Million Five Hundred Fifty Thousand and 00/100 Dollars ($5,550,000.00), together with interest as hereinafter provided, in lawful money of the United States, which shall be legal tender in payment of all debts and dues, public and private, at the time of payment, in the manner hereinafter provided.
RATE OF INTEREST
So long as there is no Event of Default (as defined below) hereunder, during the term of this Promissory Note (the "Promissory Note"), the principal balance of this Promissory Note shall bear interest per annum at the rate equal to the rate announced by The First National Bank of Boston from time to time as its Base Rate (the "Contract Rate").
If Borrower does not make timely payments as provided in this Promissory Note, a late payment fee in an amount equal to five percent (5%) of the past due amount shall be payable in connection with any amount due under this Promissory Note that is not received by Holder within ten (10) days of when due. In an Event of Default (as defined below), Holder shall have the right and option to charge interest on the then outstanding principal balance at a default rate equal to five percent (5%) over the Contract Rate, in addition to all other rights provided by this Promissory Note or as provided by law or in equity.
LIMITATIONS ON INTEREST RATE
It is the intention of Borrower and Holder that the rates of interest from time to time applicable hereunder, including all sums and charges that may properly be deemed to constitute interest, shall not exceed the maximum lawful rate of interest applicable to each such rate. To that end, it is agreed that any rate of interest applicable hereunder shall not at any time exceed the rates or amount of interest then permitted to be charged by stipulation in writing between Borrower and Holder hereunder (the "Interest Rate Limitation").
In the event that any rate of interest otherwise applicable hereunder (including any sums paid independent of this Promissory Note and properly determined under applicable law to be interest) shall exceed the Interest Rate Limitation, the interest rate applicable to this Promissory Note shall automatically be reduced to the applicable maximum interest rate which does not exceed the applicable Interest Rate Limitation, and sums paid as interest which would cause any effective rate of interest hereunder to exceed the applicable Interest Rate Limitation shall be applied to reduce the principal balance of this Promissory Note.
MANNER OF PAYMENT
A payment of all interest which has accrued hereunder but has not been paid shall be made on June 1, 1996, and on the first day of each and every month thereafter until the Maturity Date of this Promissory Note. Interest which would accrue during the month in which the Maturity Date falls will be collected at the Maturity Date. In addition, any payment or proceeds actually received by Borrower in connection with (i) the sale by Owner (as defined in the Security Instrument defined below) of the real property encumbered by the Note, Mortgage or Other Security Documents (as defined below) or (ii) insurance or condemnation proceeds, in each case, that the Borrower (as lender under the Mortgage) is entitled under the Mortgage to receive from the Owner, shall be paid to Holder as principal immediately upon receipt of such payment by Borrower.
For purposes of computing payments of principal and interest, the payments shall be computed on the basis of a three hundred sixty (360) day year composed of twelve (12) thirty (30) day months. Interest accruing in partial months shall be computed on a three hundred sixty (360) day year. Payments hereunder shall be applied first in payment of lat charges, costs, expenses, accrued interest and thereafter in reduction of principal. All principal and accrued interest shall be paid on November 9, 1997 ("Maturity Date").
PREPAYMENT
This Promissory Note may be prepaid in whole or in part at any time without penalty.
SECURITY
This Promissory Note is secured by a Collateral Assignment of Mortgage of even date herewith from Borrower to Holder (the "Security Instrument"), pursuant to which Borrower has granted Holder a security interest in (i) the Note (as defined in the Security Instrument) in the aggregate principal amount of Twenty-Five Million and 00/100 Dollars ($25,000,000.00) held by Borrower, and (ii) the Mortgage and Other Security Documents (in each case, as defined in the Security Instrument). Holder shall be entitled to the benefits of the Note, the Mortgage and the Other Security Documents.
DEFAULT
The unpaid principal balance, all accrued and unpaid interest due under this Promissory Note and all other amounts due hereunder shall become immediately due and payable at the option of Holder upon any Event of Default (as defined below). Borrower shall pay all costs and reasonable attorneys' fees incurred in collecting or enforcing this Promissory Note, whether suit be brought or not. Any failure of Holder to exercise such option to accelerate shall not constitute a waiver of the right to exercise such option to accelerate at any future time. As used herein, an "Event of Default" shall mean (i) the failure of Borrower to make timely payments of interest hereunder, which failure continues for a period of ten (10) days following the date any such interest payment required to be made hereunder is due, (ii) the failure to make any required principal payment hereunder when due, and (iii) any "Event of Default" by Borrower under the Security Instrument (as that term is defined therein).
Acceptance by Holder of any payment in an amount less than the amount then due shall be deemed an acceptance on account only, and, at any time thereafter and until the entire amount then due has been paid, Holder shall be entitled to exercise all rights conferred upon it in this Promissory Note upon the occurrence of an Event of Default.
Borrower and every person and entity at any time liable for the payment of the evidenced debt expressly authorize Holder to immediately apply to the payment of this Promissory Note any sum of money or other property belonging to Borrower or any such person or entity, deposited or otherwise in the hands of Holder; provided, however, that neither this authority, nor the fact that it may not be exercised, shall alter or modify in any manner the obligation herein incurred.
WAIVER
Borrower for itself and its legal representatives, successors and assigns, and every person and entity at any time liable for the indebtedness hereunder, or any part thereof, expressly waives presentment, demand, protest, notice of dishonor, notice of nonpayment, notice of maturity, notice of protest, presentment for the purpose of accelerating maturity, diligence in collection, marshalling rights, subrogation rights, and any exemption under the homestead exemption laws, if any, or any other exemption or insolvency laws whatsoever in respect of this Promissory Note or the Security Instrument or items of collateral described therein. Borrower consents that Holder may extend the time for payment or otherwise modify the terms of payment of any part or the whole of the debt evidenced hereby.
LIABILITY
Borrower shall have full personal liability for all amounts due under this Promissory Note.
GOVERNING LAW, SUCCESSORS
AND ASSIGNS AND MISCELLANEOUS
This Promissory Note is delivered and accepted in the State of New York and shall be governed and construed in accordance with its laws. If any provision of this Promissory Note is in conflict with any statute or applicable rule of law, or is otherwise unenforceable for any reason whatsoever, such provision shall be deemed null and void to the extent of such conflict or unenforceability and shall be deemed separate from and shall not invalidate any other provision of this Promissory Note. TIME SHALL BE OF THE ESSENCE UNDER THIS PROMISSORY NOTE. This Promissory Note may not be amended except by a writing signed by Borrower and Holder. This Promissory Note shall, in accordance with its terms, be binding upon Borrower, its successors and assigns, and shall inure to the benefit of Holder and its successors and assigns. The paragraph captions provided in this Promissory Note are for convenience only and shall not affect the meaning, interpretation or construction of the provisions hereof.
IN WITNESS WHEREOF, Borrower has caused this Promissory Note to be executed on the day and year first written above.
ATLANTIC REALTY TRUST,
a Maryland real estate investment trust
By: /s/ Edwin R. Frankel
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Its: Executive Vice President and Secretary
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Address for notice purposes:
747 Third Avenue New York, New York 10017 Attention: Joel M. Pashcow, Chairman and President
EXHIBIT 10.7
ATLANTIC REALTY TRUST
747 Third Avenue
New York, New York 10017
May 10, 1996
RPS Realty Trust
(now named Ramco-Gershenson Properties Trust)
27600 Northwestern Highway, Suite 200
Southfield, Michigan 48034
Re: Ramco Acquisition
Gentlemen:
Reference is made to the Amended and Restated Master Agreement, dated as of December 27, 1995, as amended by the First Amendment to the Amended and Restated Master Agreement, dated as of March 19, 1996, among the RPS Realty Trust, a Massachusetts business trust ("RPS"), Ramco-Gershenson, Inc., a Michigan corporation, Dennis Gershenson, Joel Gershenson, Bruce Gershenson, Richard Gershenson, Michael A. Ward, Michael A. Ward, Trustee U/T/A dated 2/22/77, as amended, Ramco-Gershenson Properties Trust, L.P., a Delaware limited partnership, and the affiliates of Ramco listed on Schedule A thereto (as amended, the "Master Agreement"). Capitalized terms used and not otherwise defined in this letter agreement shall have the meanings set forth in the Master Agreement.
This letter agreement confirms and memorializes our agreement with RPS as follows:
1. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Atlantic Realty Trust, a Maryland real estate investment trust ("Atlantic"), hereby assumes and agrees to be liable for, and agrees to pay, perform and discharge as they become due, all Excluded Expenses (other than amounts payable to Joel M. Pashcow under Section 3(b)(ii) of the Termination Agreement between RPS and Joel M. Pashcow, dated March 26, 1996) that were incurred or are the responsibility of RPS under the Master Agreement and which were not paid for by RPS at or prior to the Closing (collectively, the "Assumed Liabilities").
2. Atlantic shall indemnify, defend and hold harmless RPS from and against any and all Assumed Liabilities and any and all liabilities, costs and expenses in connection with any claims, actions, suits or proceedings arising out of or resulting from the Assumed Liabilities. If RPS shall receive notice of any such claim, action, suit or proceeding, shall promptly notify Atlantic which shall be entitled and obligated to defend or settle the same through its own counsel and its own expense, but RPS, shall provide any corporation reasonably requested by Atlantic.
3. Each of Atlantic and RPS hereby agrees to take or cause to be taken such further action, to execute, deliver and file a cause to be executed, delivered and filed such further documents and
instruments, and may be necessary or it may be reasonably requested in order to effectuate fully the purposes, terms and conditions of this letter agreement.
4. This letter agreement shall be binding upon and shall inure to the benefit of the parties hereof and their respective successors, heirs, executives, administratives, legal representatives and assignees.
5. This letter agreement shall be governed by and in accordance with the laws of the State of New York, without giving effect to conflict of laws.
Very truly yours,
ATLANTIC REALTY TRUST
By: /s/ Edwin R. Frankel
-------------------------
Name: Edwin R. Frankel
Title:
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EXHIBIT 10.8
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of May 10, 1996, is entered into between RAMCO-GERSHENSON PROPERTIES TRUST, formerly known as RPS Realty Trust, a Massachusetts business trust (the "Trust"), and JOEL GERSHENSON ("Executive"). Capitalized terms used but not otherwise defined in this Agreement shall have the meanings set forth in the Amended and Restated Master Agreement, dated as of December 27, 1995, as amended by the First Amendment to Amended and Restated Master Agreement dated March 19, 1996, by and among RPS Realty Trust, a Massachusetts business trust, Ramco-Gershenson, Inc., a Michigan corporation, Joel Gershenson, Dennis Gershenson, Bruce Gershenson, Richard Gershenson, Michael A. Ward, Michael A. Ward, Trustee U/T/A dated 2/22/77, as amended, Ramco-Gershenson Properties, L.P., a Delaware limited partnership and the Ramco Contributing Parties listed on Schedule A attached thereto (as amended, the "Master Agreement").
RECITALS
A. The Trust is a business trust intended to be qualified and to operate as a real estate investment trust under the Internal Revenue Code of 1986, as amended.
B. The Trust is the general partner of Ramco-Gershenson Properties, L.P., a Delaware limited partnership (the "Operating Partnership"), which has, among other things, acquired various shopping center properties from Subsidiaries of the Trust and partnerships managed and controlled by Ramco-Gershenson, Inc. ("Ramco Management") or its affiliates.
C. Executive is one of the five principals of Ramco Management (the "Ramco Principals"). The Trust wishes to employ Executive and the other Ramco Principals, and Executive wishes to be employed by the Trust, on the terms and conditions set forth below.
THEREFORE, the parties agree as follows:
1. EMPLOYMENT DUTIES. During the Term (as defined in paragraph 2 below), the Trust will employ Executive as its Chairman. Except as permitted by Executive's Noncompetition Agreement with the Trust, Executive will devote substantially all of his business time and attention to the performance of his duties under this Agreement. Executive initially shall have the duties, rights and responsibilities normally associated with his position with the Trust consistent with the Amended and Restated Declaration of Trust of the Trust, as amended, together with such other reasonable duties relating to the operation of the business of the Trust and its affiliates as may be assigned to him from time to time by the Board of Trustees of the Trust (the "Board") or may otherwise be provided for in such Bylaws. If the Trust shall so request, Executive shall become and shall, at any time during the term of this Agreement as the Trust shall so request, act as a trustee of the Trust and/or as an officer and/or director of any of the Subsidiaries of the Trust as they may now exist or may be established by the Trust in the future without any compensation other than that provided for in paragraph 3.
2. TERM. The term of Executive's employment under this Agreement (the "Term") will begin on the date of this Agreement and will continue, subject to the termination provisions set forth in paragraph 5 below, until the third anniversary of the date hereof; provided that, if the Board has considered whether or not to extend the Term at a meeting held not more than 90 days or less than 30 days prior to the expiration of the Term, the Term will automatically be extended for one year unless either the Trust or Executive gives written notice of non-extension to the other at least 20 days prior to the expiration of the Term.
3. SALARY AND BONUS.
a. Salary. During each year of the Term, Executive will receive a salary at the annual rate of $100,000, which salary will be subject to increase as set forth below (as so increased, the "Base Salary"). The Compensation Committee of the Trust's Board of Trustees (the "Committee") will review Executive's Base Salary on an annual basis, and the Committee, upon such review and in its sole discretion, may increase or decrease the Base Salary by an amount which the Committee deems appropriate in light of the Trust's and Executive's performance during the period covered by such review; provided, however, that the Base Salary will not be reduced below $100,000 per annum. The Base Salary will be payable to Executive in accordance with the Trust's standard payroll practices.
b. Bonus. In addition to the Base Salary, the Trust will pay to Executive performance-based bonus compensation for each fiscal year of the Trust, not later than 60 days following the end of each fiscal year or the expiration of the Term as a result of the nonextension thereof or as otherwise specified in paragraph 6 below, as the case may be, prorated on a per diem basis for partial fiscal years, as determined by the Committee but not less than that determined and calculated in accordance with the formula set forth on Exhibit "A" hereto.
4. FRINGE BENEFITS. In addition to the other compensation payable pursuant to this Agreement, during the Term:
a. Standard Benefits. Executive will be entitled to receive such fringe benefits and perquisites, including medical, dental, disability and life insurance, as are generally made available from time to time to management employees and Executives of the Trust and as was provided to Executive by Ramco Management on December 31, 1995, and to participate in any pension, profit-sharing, stock option or similar plan or program established from time to time by the Trust for the benefit of its employees.
b. Vacation and Sick Leave. Executive will be entitled to such periods of paid vacation and sick leave allowance each year (not less than four weeks) that are consistent with the Trust's vacation and sick leave policy for senior management.
c. Business Expenses. The Trust will pay or reimburse Executive for all business-related expenses incurred by Executive in the course of his performance of duties under this Agreement, subject to the procedures established by the Trust from time to time with respect
to incurrence, substantiation, reasonableness and approval. The business-related expenses to be paid for or reimbursed by the Trust hereunder will include those expenses paid for or reimbursed by Ramco Management for the benefit of Executive for the year ending December 31, 1995, including professional licensing and association fees and dues, professional journal subscriptions and errors and omissions insurance coverage.
d. Stock Options. Executive shall be entitled to participate in employee stock option plans from time to time established for the benefit of employees of the Trust in accordance with the terms and conditions of such plans. On the date hereof, Executive shall receive a grant of 24,000 stock options pursuant to the Trust's 1996 Share Option Plan, which options shall vest in three equal annual installments on the first, second and third anniversaries of the date hereof. The option exercise price with respect to the stock options granted on the date hereof shall be equal to $16.00 per share. None of the terms of any such option shall be modified without Executive's consent. Within 60 days after the date hereof, the Trust shall file a registration statement on Form S-8 registering under the Securities Act of 1933, as amended (the "Securities Act") the shares of beneficial interest of the Trust sold to Executive upon the exercise of the options granted to Executive pursuant to this paragraph 4(d) (collectively, the "Registrable Securities"). The Trust shall use commercially reasonable efforts to maintain the effectiveness of such registration statement under the Securities Act until the earlier of (i) the date the Registrable Securities are no longer eligible for registration on Form S-8 or (ii) the date the Registrable Securities are permitted to be disposed of pursuant to Rule 144(k) (or any successor rule) under the Securities Act.
5. TERMINATION OF EMPLOYMENT.
a. Death and Disability. Executive's employment under this Agreement will terminate immediately upon his death and upon 30 days' prior written notice given by the Trust in the event Executive is determined to be "permanently disabled" (as defined below).
b. For Cause. The Trust may terminate Executive's employment under this Agreement for "Cause" (as defined below), upon providing Executive 30 days' prior written notice of termination, which notice will describe in detail the basis of such termination and will become effective on the 30th day after Executive's receipt thereof unless Executive (i) cures the alleged violation or other circumstance which was the basis of such termination within such 30-day notice period or (ii) sends, within such 30-day notice period, written notice to the Board of Trustees of the Trust disputing in good faith the existence of Cause and requesting arbitration of such dispute pursuant to paragraph 8 below. During the pendency of the arbitration, Executive will continue to receive all compensation and benefits to which he is entitled hereunder. If the Trust is not successful in obtaining a determination by the arbitrators that there was Cause for termination, the Trust will pay Executive's reasonable expenses, including, without limitation, reasonable attorneys' fees and disbursements, in connection with such dispute resolution.
c. For Good Reason. Executive may terminate his employment under this Agreement for "Good Reason" (as defined below) upon providing the Trust 30 days' prior written
notice of termination, which notice will detail the basis of such termination and will become effective on the 30th day after the Trust's receipt thereof unless the Trust cures the alleged violation or other circumstance which was the basis of such termination within such 30-day notice period.
d. Definitions. For purposes of this Agreement:
(i) Executive will be deemed "permanently disabled" if he becomes unable to discharge his normal duties as contemplated under this Agreement for more than six consecutive months as a result of incapacity due to mental or physical illness by a physician acceptable to Executive and the Trust and paid by the Trust, whose determination will be final and binding. If Executive and the Trust are unable to agree on a physician, Executive and the Trust will each choose one physician who will mutually choose the third physician, whose determination will be final and binding.
(ii) "Cause" means either (A) a material breach by Executive of any material provisions of this Agreement or of the Noncompetition Agreement, but only if, after notice provided in subparagraph (b) above, Executive fails to cure such breach or, if such breach is not subject to cure, fails on an on-going basis thereafter to comply with the provisions of this Agreement or of the Noncompetition Agreement, as the case may be, with respect to which he was in such breach; (B) action by Executive constituting willful malfeasance or gross negligence, having a material adverse effect on the Trust; (C) an act of fraud, misappropriation of funds or embezzlement by Executive in connection with his employment hereunder; or (D) Executive is convicted of, pleads guilty to or confesses to any felony.
(iii) "Good Reason" means the occurrence of any of the following, without the prior written consent of Executive: (A) any substantial diminution of duties, responsibilities or status, or other imposition by the Trust of unreasonable requirements or working conditions on Executive, which are not withdrawn or corrected within a 30-day period following notice by Executive to the Trust of such diminution or imposition; (B) a material breach by the Trust of any of its material obligations under this Agreement, but only if (x) after expiration of the 30-day notice period provided in subparagraph (c) above, the Trust fails to cure such breach or (y) notwithstanding such cure, the Trust willfully and repeatedly breaches its obligations under this Agreement; (C) a relocation of the Trust's principal executive offices or of Executive's principal place of employment to a location more than 25 miles from Southfield, Michigan; (D) if, after any election of Trustees, at least two Ramco Principals are not members of the Board or the Ramco Principals would constitute less than 20% of the members of the Board (provided that at least two of the Ramco Principals are ready, willing and able to serve on the Board); or (E) a "change of control" as defined below.
Notwithstanding the foregoing, if at any time after the date of this
Agreement the Ramco Principals own shares or OP Units convertible
into less than 15% of the issued and outstanding Shares of the
Trust, clause (D) shall be inapplicable and shall not be deemed
"good reason" for termination of employment. Executive will be
deemed not to have consented to any proposal resulting in any of the
foregoing changes unless he will have given written notice of his
consent thereto to the Board of Trustees of the Trust within fifteen
(15) days after receipt of a written proposal describing the change.
If Executive will not give such consent, the Trust will have the
opportunity to withdraw such proposed change by written notice to
Executive given within 15 days after expiration of the foregoing
15-day period.
(iv) A "change in control" shall occur if any person or group of commonly controlled persons, other than the Ramco Principals or their affiliates, owns or controls, directly or indirectly, more than twenty-five percent (25%) of the voting control or value of the capital stock of the Trust, or of securities convertible into or exchangeable for capital stock of the Trust.
6. BENEFITS UPON TERMINATION.
a. Termination upon Death or Permanent Disability. Upon termination of Executive's employment under this Agreement resulting from his death or permanent disability, the Trust will remain obligated to pay to Executive or his legal representatives his Base Salary and bonus, as provided in paragraph 3 above, for an additional period equal to 12 months from the effective date of termination (such additional period being referred to in this Agreement as the "Severance Period"). In the event of a termination upon Executive's permanent disability, Executive will also remain entitled to receive, during the Severance Period, those fringe benefits specified in paragraph 4 above, including coverage under all insurance programs and plans. The payment of such Base Salary and bonus will be made during the Severance Period at the same times as such amounts would have been paid pursuant to paragraph 3 above had Executive's employment not have been terminated and had the Term expired at the end of the Severance Period.
b. Termination with Cause or Resignation. Upon termination of Executive's employment by the Trust pursuant to paragraph 5(b) above or a voluntary resignation by Executive (other than for Good Reason pursuant to paragraph 5(c) above), the Trust will remain obligated to pay Executive only the unpaid portion of his Base Salary, bonus and benefits (including the value of any untaken vacation time to the extent Executive has, during the year in which such termination occurs, taken less vacation time than permitted to him hereunder), to the extent accrued through the effective date of termination. Any amount due under this subparagraph will be payable within 30 days after the date of termination.
c. Termination without Cause or for Good Reason. Upon termination of Executive's employment (x) by the Trust other than for Cause or upon Executive's death or
permanent disability or (y) by Executive for Good Reason, Executive will be entitled to the benefits provided below:
(i) the Trust will pay Executive his Base Salary through the date of termination;
(ii) the Trust will pay as severance pay to Executive, not later
than the 30th day following the date of termination, a lump sum
severance payment (the "Severance Payment") equal to the greater of
(x) the aggregate of all compensation due to Executive hereunder
during the balance of the Term, assuming that the annual bonuses
payable to Executive during such period will equal the average of the
annual bonuses paid to Executive under this Agreement prior to
termination of employment, or (y) 2.99 times (or, after the second
anniversary of the date of this Agreement, 1.99 times) the "base
amount" within the meaning of Sections 280G(b)(3) and 280G(d) of the
Internal Revenue Code of 1986, as amended (the "Code"), and any
applicable temporary or final regulations promulgated thereunder, or
its equivalent as provided in any successor statute or regulation. If
Section 280G of the Code (and any successor provisions thereto) is
repealed or otherwise inapplicable, then the Severance Payment will
equal 2.99 (or, after the second anniversary of this agreement, 1.99
times) times the average of Executive's annual compensation for both
complete and partial calendar years during so much of the five
calendar year period preceding the calendar year in which the
termination occurs during which Executive was so employed, determined
by analyzing any compensation (other than non-recurring items)
includable in Executive's gross income for any partial calendar year
and then adding such non-recurring items to such annualized
compensation. Compensation payable to Executive by the Trust will
include every type and form of compensation includable in Executive's
gross income in respect of his employment by the Trust, including
compensation income recognized as a result of Executive's exercise of
stock options or sale of the stock so acquired, except to the extent
otherwise provided in Section 280G of the Code and any temporary or
final regulations promulgated thereunder;
(iii) if in the opinion of tax counsel elected by Executive and
reasonably acceptable to the Trust, any portion of any payment made to
Executive, including without limitation, the Severance Payment
constitutes an excess "parachute payment" within the meaning of
Section 280G(b)(1) of the Code, the Trust will pay Executive an
additional amount (the "Additional Amount") equal to the sum of (i)
all taxes payable by Executive under Section 4999 of the Code with
respect to the Severance Payment and the Additional Amount, plus (ii)
all federal, state or local income taxes payable by Executive with
respect to the Additional Amount; and
(iv) for the duration of the Term, those fringe benefits specified in paragraph 4(a) above, including coverage under all insurance programs and plans.
d. No Mitigation. Executive will not be required to mitigate the amount of any payment provided for in this paragraph 6 by seeking other employment or otherwise, nor will the amount of any payment or benefit provided for in this paragraph 6 be reduced by any compensation earned by him as the result of employment by another employer or by retirement benefits after the date of termination, or otherwise.
e. Expiration of this Agreement. In the event the Term of this Agreement expires without having otherwise been previously terminated pursuant to paragraph 5 above or by the Trust without cause, Executive will not be entitled to any severance compensation whatsoever under this paragraph 6.
7. INDEMNIFICATION. To the full extent permitted by applicable law, Executive shall be indemnified and held harmless for any action or failure to act in his capacity as a director, trustee, officer or employee of the Trust. In furtherance of the foregoing and not by way of limitation, if Executive is a party or is threatened to be made a party to any suit because he is a director, trustee, officer or employee of the Trust, he shall be indemnified against expenses, including attorney's fees, judgments, fines and amounts paid in settlement if he acted in good faith and in a manner reasonably believed to be in or not opposed to the best interest of the Trust, and with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. Indemnification under this Section shall be in addition to any other indemnification by the Trust of its officers and trustees. Expenses incurred by the Executive in defending an action, suit or proceeding for which he claims the right to be indemnified pursuant to this Section shall be paid by the Trust in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the Executive to repay such amount in the event that it shall ultimately be determined that he is not entitled to indemnification by the Trust. Such undertaking shall be accepted without reference to the financial ability of such Executive to make repayment. The Trust shall use commercially reasonable efforts to maintain in effect for the Term of this Agreement a directors' and officers' liability insurance policy, with a policy limit of at least $10,000,000 (which may be spread over a multiple year period), subject to customary exclusions, with respect to claims made against officers and directors of the Trust; provided, however, the Trust shall be relieved of this obligation to maintain directors' and officers' liability insurance if, in the good faith judgment of the Trust, it cannot be obtained at a reasonable cost.
8. ARBITRATION. The parties hereto will endeavor to resolve in good faith any controversy, disagreement or claim arising between them, whether as to the interpretation, performance or operation of this Agreement or any rights or obligations hereunder. If they are unable to do so, any such controversy, disagreement or claim will be submitted to binding arbitration, for final resolution without appeal, by either party giving written notice to the other of the existence of a dispute which it desires to have arbitrated. The arbitration will be conducted in Detroit, Michigan by a panel of three (3) arbitrators and will be held in accordance with the
rules of the American Arbitration Association. Of the three arbitrators, one will be selected by the Trust, one will be selected by Executive and the third will be selected by the two arbitrators so selected. Each party will notify the other party of the arbitrator selected by him or it within fifteen (15) days after the giving of the written notice referred to in this paragraph 8. The decision and award of the arbitrators must be in writing and will be final and binding upon the parties hereto, with the same effect as an arbitration pursuant to Michigan Compiled Laws Annotated Section 600.5001. Judgment upon the award may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The expenses of arbitration will be borne in accordance with the determination of the arbitrators with respect thereto, except as otherwise specified in paragraph 5(b) above. Pending a decision by the arbitrators with respect to the dispute or difference undergoing arbitration, all other obligations of the parties will continue as stipulated herein, and all monies not directly involved in such dispute or difference will be paid when due.
9. MISCELLANEOUS.
a. Executive represents and warrants that he is not a party to any agreement, contract or understanding, whether employment or otherwise, which would restrict or prohibit him from undertaking or performing employment in accordance with the terms and conditions of this Agreement.
b. The provisions of this Agreement are severable and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions and any partially unenforceable provision to the extent enforceable in any jurisdiction will remain binding and enforceable.
c. The rights and obligations of the Trust under this Agreement inure to the benefit of, and will be binding on, the Trust and its successors and permitted assigns, and the rights and obligations (other than obligations to perform services) of Executive under this Agreement will inure to the benefit of, and will be binding upon, Executive and his heirs, personal representatives and permitted assigns; provided, however, Executive shall not be entitled to assign or delegate any of his rights and obligations under this Agreement without the prior written consent of the Trust; provided, further, that the Trust shall not have the right to assign or delegate any of its rights or obligations under this Agreement except to a corporation, partnership or other business entity that is, directly or indirectly, controlled by the Trust.
d. Any notice to be given under this Agreement will be personally delivered in writing or will have been deemed duly given when received after it is posted in the United States mail, postage prepaid, registered or certified, return receipt requested, and if mailed to the Trust, will be addressed to its principal place of business, attention: Secretary, and if mailed to Executive, will be addressed to him at his home address last known on the records of the Trust or at such other address or addresses as either the Trust or Executive may hereafter designate in writing to the other.
e. The failure of either party to enforce any provision or provisions of this Agreement will not in any way be construed as a waiver of any such provision or provisions as to any future violations thereof, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. The rights granted the parties herein are cumulative and the waiver of any single remedy will not constitute a waiver of such party's right to assert all other legal remedies available to it under the circumstances.
f. This Agreement will be governed by and construed according to the laws of the State of Michigan.
g. Captions and paragraph headings used herein are for convenience and are not a part of this Agreement and will not be used in construing it.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
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Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Joel Gershenson
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Joel Gershenson
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EXHIBIT A
Bonus Calculation
The bonus compensation payable to Executive pursuant to paragraph 3(b), for each year of the Agreement, will equal the following:
(a) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase less than 5% from the Company's Funds From Operation per outstanding Share for the previous year, then 0%;
(b) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase at least 5% but less than 7% from the Trust's Funds From Operation per outstanding Share for the previous year, then 15% of Executive's Base Salary for the year for which the bonus is to be paid;
(c) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase at least 7% but less than 10% from the Trust's Funds From Operation per outstanding Share for the previous year, then 22.5% of Executive's Base Salary for the year for which the bonus is to be paid;
(d) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase at least 10% but less than 15% from the Trust's Funds From Operation per outstanding Share for the previous year, then 30% of Executive's Base Salary for the year for which the bonus is to be paid;
(e) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase by 15% or more from the Trust's Funds From Operation per outstanding Share for the previous year, then 50% of Executive's Base Salary for the year for which the bonus is to be paid.
EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of May 10, 1996, is entered into between RAMCO-GERSHENSON PROPERTIES TRUST, formerly known as RPS Realty Trust, a Massachusetts business trust (the "Trust"), and DENNIS GERSHENSON ("Executive"). Capitalized terms used but not otherwise defined in this Agreement shall have the meanings set forth in the Amended and Restated Master Agreement, dated as of December 27, 1995, as amended by the First Amendment to Amended and Restated Master Agreement dated March 19, 1996, by and among RPS Realty Trust, a Massachusetts business trust, Ramco-Gershenson, Inc., a Michigan corporation, Joel Gershenson, Dennis Gershenson, Bruce Gershenson, Richard Gershenson, Michael A. Ward, Michael A. Ward, Trustee U/T/A dated 2/22/77, as amended, Ramco-Gershenson Properties, L.P., a Delaware limited partnership and the Ramco Contributing Parties listed on Schedule A attached thereto (as amended, the "Master Agreement").
RECITALS
A. The Trust is a business trust intended to be qualified and to operate as a real estate investment trust under the Internal Revenue Code of 1986, as amended.
B. The Trust is the general partner of Ramco-Gershenson Properties, L.P., a Delaware limited partnership (the "Operating Partnership"), which has, among other things, acquired various shopping center properties from Subsidiaries of the Trust and partnerships managed and controlled by Ramco-Gershenson, Inc. ("Ramco Management") or its affiliates.
C. Executive is one of the five principals of Ramco Management (the "Ramco Principals"). The Trust wishes to employ Executive and the other Ramco Principals, and Executive wishes to be employed by the Trust, on the terms and conditions set forth below.
THEREFORE, the parties agree as follows:
1. EMPLOYMENT DUTIES. During the Term (as defined in paragraph 2 below), the Trust will employ Executive as its President and Chief Executive Officer. Except as permitted by Executive's Noncompetition Agreement with the Trust, Executive will devote substantially all of his business time and attention to the performance of his duties under this Agreement. Executive initially shall have the duties, rights and responsibilities normally associated with his position with the Trust consistent with the Amended and Restated Declaration of Trust of the Trust, as amended, together with such other reasonable duties relating to the operation of the business of the Trust and its affiliates as may be assigned to him from time to time by the Board of Trustees of the Trust (the "Board") or may otherwise be provided for in such Bylaws. If the Trust shall so request, Executive shall become and shall, at any time during the term of this Agreement as the Trust shall so request, act as a trustee of the Trust and/or as an officer and/or director of any of the Subsidiaries of the Trust as they may now exist or may be established by the Trust in the future without any compensation other than that provided for in paragraph 3.
2. TERM. The term of Executive's employment under this Agreement (the "Term") will begin on the date of this Agreement and will continue, subject to the termination provisions
set forth in paragraph 5 below, until the third anniversary of the date hereof; provided that, if the Board has considered whether or not to extend the Term at a meeting held not more than 90 days or less than 30 days prior to the expiration of the Term, the Term will automatically be extended for one year unless either the Trust or Executive gives written notice of non-extension to the other at least 20 days prior to the expiration of the Term.
3. SALARY AND BONUS.
a. Salary. During each year of the Term, Executive will receive a salary at the annual rate of $100,000, which salary will be subject to increase as set forth below (as so increased, the "Base Salary"). The Compensation Committee of the Trust's Board of Trustees (the "Committee") will review Executive's Base Salary on an annual basis, and the Committee, upon such review and in its sole discretion, may increase or decrease the Base Salary by an amount which the Committee deems appropriate in light of the Trust's and Executive's performance during the period covered by such review; provided, however, that the Base Salary will not be reduced below $100,000 per annum. The Base Salary will be payable to Executive in accordance with the Trust's standard payroll practices.
b. Bonus. In addition to the Base Salary, the Trust will pay to Executive performance-based bonus compensation for each fiscal year of the Trust, not later than 60 days following the end of each fiscal year or the expiration of the Term as a result of the nonextension thereof or as otherwise specified in paragraph 6 below, as the case may be, prorated on a per diem basis for partial fiscal years, as determined by the Committee but not less than that determined and calculated in accordance with the formula set forth on Exhibit "A" hereto.
4. FRINGE BENEFITS. In addition to the other compensation payable pursuant to this Agreement, during the Term:
a. Standard Benefits. Executive will be entitled to receive such fringe benefits and perquisites, including medical, dental, disability and life insurance, as are generally made available from time to time to management employees and Executives of the Trust and as was provided to Executive by Ramco Management on December 31, 1995, and to participate in any pension, profit-sharing, stock option or similar plan or program established from time to time by the Trust for the benefit of its employees.
b. Vacation and Sick Leave. Executive will be entitled to such periods of paid vacation and sick leave allowance each year (not less than four weeks) that are consistent with the Trust's vacation and sick leave policy for senior management.
c. Business Expenses. The Trust will pay or reimburse Executive for all business-related expenses incurred by Executive in the course of his performance of duties under this Agreement, subject to the procedures established by the Trust from time to time with respect to incurrence, substantiation, reasonableness and approval. The business-related expenses to be paid for or reimbursed by the Trust hereunder will include those expenses paid for or reimbursed
by Ramco Management for the benefit of Executive for the year ending December 31, 1995, including professional licensing and association fees and dues, professional journal subscriptions and errors and omissions insurance coverage.
d. Stock Options. Executive shall be entitled to participate in employee stock option plans from time to time established for the benefit of employees of the Trust in accordance with the terms and conditions of such plans. On the date hereof, Executive shall receive a grant of 24,000 stock options pursuant to the Trust's 1996 Share Option Plan, which options shall vest in three equal annual installments on the first, second and third anniversaries of the date hereof. The option exercise price with respect to the stock options granted on the date hereof shall be equal to the OPV per share. None of the terms of any such option shall be modified without Executive's consent. Within 60 days after the date hereof, the Trust shall file a registration statement on Form S-8 registering under the Securities Act of 1933, as amended (the "Securities Act") the shares of beneficial interest of the Trust sold to Executive upon the exercise of the options granted to Executive pursuant to this paragraph 4(d) (collectively, the "Registrable Securities"). The Trust shall use commercially reasonable efforts to maintain the effectiveness of such registration statement under the Securities Act until the earlier of (i) the date the Registrable Securities are no longer eligible for registration on Form S-8 or (ii) the date the Registrable Securities are permitted to be disposed of pursuant to Rule 144(k) (or any successor rule) under the Securities Act.
5. TERMINATION OF EMPLOYMENT.
a. Death and Disability. Executive's employment under this Agreement will terminate immediately upon his death and upon 30 days' prior written notice given by the Trust in the event Executive is determined to be "permanently disabled" (as defined below).
b. For Cause. The Trust may terminate Executive's employment under this Agreement for "Cause" (as defined below), upon providing Executive 30 days' prior written notice of termination, which notice will describe in detail the basis of such termination and will become effective on the 30th day after Executive's receipt thereof unless Executive (i) cures the alleged violation or other circumstance which was the basis of such termination within such 30-day notice period or (ii) sends, within such 30-day notice period, written notice to the Board of Trustees of the Trust disputing in good faith the existence of Cause and requesting arbitration of such dispute pursuant to paragraph 8 below. During the pendency of the arbitration, Executive will continue to receive all compensation and benefits to which he is entitled hereunder. If the Trust is not successful in obtaining a determination by the arbitrators that there was Cause for termination, the Trust will pay Executive's reasonable expenses, including, without limitation, reasonable attorneys' fees and disbursements, in connection with such dispute resolution.
c. For Good Reason. Executive may terminate his employment under this Agreement for "Good Reason" (as defined below) upon providing the Trust 30 days' prior written notice of termination, which notice will detail the basis of such termination and will become effective on the 30th day after the Trust's receipt thereof unless the Trust cures the alleged
violation or other circumstance which was the basis of such termination within such 30-day notice period.
d. Definitions. For purposes of this Agreement:
(i) Executive will be deemed "permanently disabled" if he becomes unable to discharge his normal duties as contemplated under this Agreement for more than six consecutive months as a result of incapacity due to mental or physical illness by a physician acceptable to Executive and the Trust and paid by the Trust, whose determination will be final and binding. If Executive and the Trust are unable to agree on a physician, Executive and the Trust will each choose one physician who will mutually choose the third physician, whose determination will be final and binding.
(ii) "Cause" means either (A) a material breach by Executive of any material provisions of this Agreement or of the Noncompetition Agreement, but only if, after notice provided in subparagraph (b) above, Executive fails to cure such breach or, if such breach is not subject to cure, fails on an on-going basis thereafter to comply with the provisions of this Agreement or of the Noncompetition Agreement, as the case may be, with respect to which he was in such breach; (B) action by Executive constituting willful malfeasance or gross negligence, having a material adverse effect on the Trust; (C) an act of fraud, misappropriation of funds or embezzlement by Executive in connection with his employment hereunder; or (D) Executive is convicted of, pleads guilty to or confesses to any felony.
(iii) "Good Reason" means the occurrence of any of the following, without the prior written consent of Executive: (A) any substantial diminution of duties, responsibilities or status, or other imposition by the Trust of unreasonable requirements or working conditions on Executive, which are not withdrawn or corrected within a 30-day period following notice by Executive to the Trust of such diminution or imposition; (B) a material breach by the Trust of any of its material obligations under this Agreement, but only if (x) after expiration of the 30-day notice period provided in subparagraph (c) above, the Trust fails to cure such breach or (y) notwithstanding such cure, the Trust willfully and repeatedly breaches its obligations under this Agreement; (C) a relocation of the Trust's principal executive offices or of Executive's principal place of employment to a location more than 25 miles from Southfield, Michigan; (D) if, after any election of Trustees, at least two Ramco Principals are not members of the Board or the Ramco Principals would constitute less than 20% of the members of the Board (provided that at least two of the Ramco Principals are ready, willing and able to serve on the Board); or (E) a "change of control" as defined below. Notwithstanding the foregoing, if at any time after the date of this Agreement the Ramco Principals own shares or OP Units convertible into less than 15% of the
issued and outstanding Shares of the Trust, clause (D) shall be inapplicable and shall not be deemed "good reason" for termination of employment. Executive will be deemed not to have consented to any proposal resulting in any of the foregoing changes unless he will have given written notice of his consent thereto to the Board of Trustees of the Trust within fifteen (15) days after receipt of a written proposal describing the change. If Executive will not give such consent, the Trust will have the opportunity to withdraw such proposed change by written notice to Executive given within 15 days after expiration of the foregoing 15-day period.
(iv) A "change in control" shall occur if any person or group of commonly controlled persons, other than the Ramco Principals or their affiliates, owns or controls, directly or indirectly, more than twenty-five percent (25%) of the voting control or value of the capital stock of the Trust, or of securities convertible into or exchangeable for capital stock of the Trust.
6. BENEFITS UPON TERMINATION.
a. Termination upon Death or Permanent Disability. Upon termination of Executive's employment under this Agreement resulting from his death or permanent disability, the Trust will remain obligated to pay to Executive or his legal representatives his Base Salary and bonus, as provided in paragraph 3 above, for an additional period equal to 12 months from the effective date of termination (such additional period being referred to in this Agreement as the "Severance Period"). In the event of a termination upon Executive's permanent disability, Executive will also remain entitled to receive, during the Severance Period, those fringe benefits specified in paragraph 4 above, including coverage under all insurance programs and plans. The payment of such Base Salary and bonus will be made during the Severance Period at the same times as such amounts would have been paid pursuant to paragraph 3 above had Executive's employment not have been terminated and had the Term expired at the end of the Severance Period.
b. Termination with Cause or Resignation. Upon termination of Executive's employment by the Trust pursuant to paragraph 5(b) above or a voluntary resignation by Executive (other than for Good Reason pursuant to paragraph 5(c) above), the Trust will remain obligated to pay Executive only the unpaid portion of his Base Salary, bonus and benefits (including the value of any untaken vacation time to the extent Executive has, during the year in which such termination occurs, taken less vacation time than permitted to him hereunder), to the extent accrued through the effective date of termination. Any amount due under this subparagraph will be payable within 30 days after the date of termination.
c. Termination without Cause or for Good Reason. Upon termination of Executive's employment (x) by the Trust other than for Cause or upon Executive's death or permanent disability or (y) by Executive for Good Reason, Executive will be entitled to the benefits provided below:
(i) the Trust will pay Executive his Base Salary through the date of termination;
(ii) the Trust will pay as severance pay to Executive, not
later than the 30th day following the date of termination, a lump
sum severance payment (the "Severance Payment") equal to the
greater of (x) the aggregate of all compensation due to Executive
hereunder during the balance of the Term, assuming that the annual
bonuses payable to Executive during such period will equal the
average of the annual bonuses paid to Executive under this
Agreement prior to termination of employment, or (y) 2.99 times
(or, after the second anniversary of the date of this Agreement,
1.99 times) the "base amount" within the meaning of Sections
280G(b)(3) and 280G(d) of the Internal Revenue Code of 1986, as
amended (the "Code"), and any applicable temporary or final
regulations promulgated thereunder, or its equivalent as provided
in any successor statute or regulation. If Section 280G of the
Code (and any successor provisions thereto) is repealed or
otherwise inapplicable, then the Severance Payment will equal 2.99
(or, after the second anniversary of this agreement, 1.99 times)
times the average of Executive's annual compensation for both
complete and partial calendar years during so much of the five
calendar year period preceding the calendar year in which the
termination occurs during which Executive was so employed,
determined by analyzing any compensation (other than non-recurring
items) includable in Executive's gross income for any partial
calendar year and then adding such non-recurring items to such
annualized compensation. Compensation payable to Executive by the
Trust will include every type and form of compensation includable
in Executive's gross income in respect of his employment by the
Trust, including compensation income recognized as a result of
Executive's exercise of stock options or sale of the stock so
acquired, except to the extent otherwise provided in Section 280G
of the Code and any temporary or final regulations promulgated
thereunder;
(iii) if in the opinion of tax counsel elected by Executive and reasonably acceptable to the Trust, any portion of any payment made to Executive, including without limitation, the Severance Payment constitutes an excess "parachute payment" within the meaning of Section 280G(b)(1) of the Code, the Trust will pay Executive an additional amount (the "Additional Amount") equal to the sum of (i) all taxes payable by Executive under Section 4999 of the Code with respect to the Severance Payment and the Additional Amount, plus (ii) all federal, state or local income taxes payable by Executive with respect to the Additional Amount; and
(iv) for the duration of the Term, those fringe benefits specified in paragraph 4(a) above, including coverage under all insurance programs and plans.
d. No Mitigation. Executive will not be required to mitigate the amount of any payment provided for in this paragraph 6 by seeking other employment or otherwise, nor will the amount of any payment or benefit provided for in this paragraph 6 be reduced by any compensation earned by him as the result of employment by another employer or by retirement benefits after the date of termination, or otherwise.
e. Expiration of this Agreement. In the event the Term of this Agreement expires without having otherwise been previously terminated pursuant to paragraph 5 above or by the Trust without cause, Executive will not be entitled to any severance compensation whatsoever under this paragraph 6.
7. INDEMNIFICATION. To the full extent permitted by applicable law, Executive shall be indemnified and held harmless for any action or failure to act in his capacity as a director, trustee, officer or employee of the Trust. In furtherance of the foregoing and not by way of limitation, if Executive is a party or is threatened to be made a party to any suit because he is a director, trustee, officer or employee of the Trust, he shall be indemnified against expenses, including attorney's fees, judgments, fines and amounts paid in settlement if he acted in good faith and in a manner reasonably believed to be in or not opposed to the best interest of the Trust, and with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. Indemnification under this Section shall be in addition to any other indemnification by the Trust of its officers and trustees. Expenses incurred by the Executive in defending an action, suit or proceeding for which he claims the right to be indemnified pursuant to this Section shall be paid by the Trust in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the Executive to repay such amount in the event that it shall ultimately be determined that he is not entitled to indemnification by the Trust. Such undertaking shall be accepted without reference to the financial ability of such Executive to make repayment. The Trust shall use commercially reasonable efforts to maintain in effect for the Term of this Agreement a directors' and officers' liability insurance policy, with a policy limit of at least $10,000,000 (which may be spread over a multiple year period), subject to customary exclusions, with respect to claims made against officers and directors of the Trust; provided, however, the Trust shall be relieved of this obligation to maintain directors' and officers' liability insurance if, in the good faith judgment of the Trust, it cannot be obtained at a reasonable cost.
8. ARBITRATION. The parties hereto will endeavor to resolve in good faith any controversy, disagreement or claim arising between them, whether as to the interpretation, performance or operation of this Agreement or any rights or obligations hereunder. If they are unable to do so, any such controversy, disagreement or claim will be submitted to binding arbitration, for final resolution without appeal, by either party giving written notice to the other of the existence of a dispute which it desires to have arbitrated. The arbitration will be conducted in Detroit, Michigan by a panel of three (3) arbitrators and will be held in accordance with the rules of the American Arbitration Association. Of the three arbitrators, one will be selected by the Trust, one will be selected by Executive and the third will be selected by the two arbitrators so selected. Each party will notify the other party of the arbitrator selected by him or it within
fifteen (15) days after the giving of the written notice referred to in this paragraph 8. The decision and award of the arbitrators must be in writing and will be final and binding upon the parties hereto, with the same effect as an arbitration pursuant to Michigan Compiled Laws Annotated Section 600.5001. Judgment upon the award may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The expenses of arbitration will be borne in accordance with the determination of the arbitrators with respect thereto, except as otherwise specified in paragraph 5(b) above. Pending a decision by the arbitrators with respect to the dispute or difference undergoing arbitration, all other obligations of the parties will continue as stipulated herein, and all monies not directly involved in such dispute or difference will be paid when due.
9. MISCELLANEOUS.
a. Executive represents and warrants that he is not a party to any agreement, contract or understanding, whether employment or otherwise, which would restrict or prohibit him from undertaking or performing employment in accordance with the terms and conditions of this Agreement.
b. The provisions of this Agreement are severable and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions and any partially unenforceable provision to the extent enforceable in any jurisdiction will remain binding and enforceable.
c. The rights and obligations of the Trust under this Agreement inure to the benefit of, and will be binding on, the Trust and its successors and permitted assigns, and the rights and obligations (other than obligations to perform services) of Executive under this Agreement will inure to the benefit of, and will be binding upon, Executive and his heirs, personal representatives and permitted assigns; provided, however, Executive shall not be entitled to assign or delegate any of his rights and obligations under this Agreement without the prior written consent of the Trust; provided, further, that the Trust shall not have the right to assign or delegate any of its rights or obligations under this Agreement except to a corporation, partnership or other business entity that is, directly or indirectly, controlled by the Trust.
d. Any notice to be given under this Agreement will be personally delivered in writing or will have been deemed duly given when received after it is posted in the United States mail, postage prepaid, registered or certified, return receipt requested, and if mailed to the Trust, will be addressed to its principal place of business, attention: Secretary, and if mailed to
Executive, will be addressed to him at his home address last known on the records of the Trust or at such other address or addresses as either the Trust or Executive may hereafter designate in writing to the other.
e. The failure of either party to enforce any provision or provisions of this Agreement will not in any way be construed as a waiver of any such provision or provisions as to any future violations thereof, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. The rights granted the parties herein are cumulative and the waiver of any single remedy will not constitute a waiver of such party's right to assert all other legal remedies available to it under the circumstances.
f. This Agreement will be governed by and construed according to the laws of the State of Michigan.
g. Captions and paragraph headings used herein are for convenience and are not a part of this Agreement and will not be used in construing it.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Bruce Gershenson
---------------------------------
Name: Bruce Gershenson
Title: Treasurer
/s/ Dennis Gershenson
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Dennis Gershenson
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EXHIBIT A
Bonus Calculation
The bonus compensation payable to Executive pursuant to paragraph 3(b), for each year of the Agreement, will equal the following:
(a) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase less than 5% from the Company's Funds From Operation per outstanding Share for the previous year, then 0%;
(b) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase at least 5% but less than 7% from the Trust's Funds From Operation per outstanding Share for the previous year, then 15% of Executive's Base Salary for the year for which the bonus is to be paid;
(c) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase at least 7% but less than 10% from the Trust's Funds From Operation per outstanding Share for the previous year, then 22.5% of Executive's Base Salary for the year for which the bonus is to be paid;
(d) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase at least 10% but less than 15% from the Trust's Funds From Operation per outstanding Share for the previous year, then 30% of Executive's Base Salary for the year for which the bonus is to be paid;
(e) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase by 15% or more from the Trust's Funds From Operation per outstanding Share for the previous year, then 50% of Executive's Base Salary
for the year for which the bonus is to be paid.
EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of May 10, 1996, is entered into between RAMCO-GERSHENSON PROPERTIES TRUST, formerly known as RPS Realty Trust, a Massachusetts business trust (the "Trust"), and MICHAEL A. WARD ("Executive"). Capitalized terms used but not otherwise defined in this Agreement shall have the meanings set forth in the Amended and Restated Master Agreement, dated as of December 27, 1995, as amended by the First Amendment to Amended and Restated Master Agreement dated March 19, 1996, by and among RPS Realty Trust, a Massachusetts business trust, Ramco-Gershenson, Inc., a Michigan corporation, Joel Gershenson, Dennis Gershenson, Bruce Gershenson, Richard Gershenson, Michael A. Ward, Michael A. Ward, Trustee U/T/A dated 2/22/77, as amended, Ramco-Gershenson Properties, L.P., a Delaware limited partnership and the Ramco Contributing Parties listed on Schedule A attached thereto (as amended, the "Master Agreement").
RECITALS
A. The Trust is a business trust intended to be qualified and to operate as a real estate investment trust under the Internal Revenue Code of 1986, as amended.
B. The Trust is the general partner of Ramco-Gershenson Properties, L.P., a Delaware limited partnership (the "Operating Partnership"), which has, among other things, acquired various shopping center properties from Subsidiaries of the Trust and partnerships managed and controlled by Ramco-Gershenson, Inc. ("Ramco Management") or its affiliates.
C. Executive is one of the five principals of Ramco Management (the "Ramco Principals"). The Trust wishes to employ Executive and the other Ramco Principals, and Executive wishes to be employed by the Trust, on the terms and conditions set forth below.
THEREFORE, the parties agree as follows:
1. EMPLOYMENT DUTIES. During the Term (as defined in paragraph 2 below), the Trust will employ Executive as its Executive Vice President and Chief Operating Officer. Except as permitted by Executive's Noncompetition Agreement with the Trust, Executive will devote substantially all of his business time and attention to the performance of his duties under this Agreement. Executive initially shall have the duties, rights and responsibilities normally associated with his position with the Trust consistent with the Amended and Restated Declaration of Trust of the Trust, as amended, together with such other reasonable duties relating to the operation of the business of the Trust and its affiliates as may be assigned to him from time to time by the Board of Trustees of the Trust (the "Board") or may otherwise be provided for in such Bylaws. If the Trust shall so request, Executive shall become and shall, at any time during the term of this Agreement as the Trust shall so request, act as a trustee of the Trust and/or as an officer and/or director of any of the Subsidiaries of the Trust as they may now exist or may be established by the Trust in the future without any compensation other than that provided for in paragraph 3.
2. TERM. The term of Executive's employment under this Agreement (the "Term") will begin on the date of this Agreement and will continue, subject to the termination provisions set forth in paragraph 5 below, until the third anniversary of the date hereof; provided that, if the Board has considered whether or not to extend the Term at a meeting held not more than 90 days or less than 30 days prior to the expiration of the Term, the Term will automatically be extended for one year unless either the Trust or Executive gives written notice of non-extension to the other at least 20 days prior to the expiration of the Term.
3. SALARY AND BONUS.
a. Salary. During each year of the Term, Executive will receive a salary at the annual rate of $100,000, which salary will be subject to increase as set forth below (as so increased, the "Base Salary"). The Compensation Committee of the Trust's Board of Trustees (the "Committee") will review Executive's Base Salary on an annual basis, and the Committee, upon such review and in its sole discretion, may increase or decrease the Base Salary by an amount which the Committee deems appropriate in light of the Trust's and Executive's performance during the period covered by such review; provided, however, that the Base Salary will not be reduced below $100,000 per annum. The Base Salary will be payable to Executive in accordance with the Trust's standard payroll practices.
b. Bonus. In addition to the Base Salary, the Trust will pay to Executive performance-based bonus compensation for each fiscal year of the Trust, not later than 60 days following the end of each fiscal year or the expiration of the Term as a result of the nonextension thereof or as otherwise specified in paragraph 6 below, as the case may be, prorated on a per diem basis for partial fiscal years, as determined by the Committee but not less than that determined and calculated in accordance with the formula set forth on Exhibit "A" hereto.
4. FRINGE BENEFITS. In addition to the other compensation payable pursuant to this Agreement, during the Term:
a. Standard Benefits. Executive will be entitled to receive such fringe benefits and perquisites, including medical, dental, disability and life insurance, as are generally made available from time to time to management employees and Executives of the Trust and as was provided to Executive by Ramco Management on December 31, 1995, and to participate in any pension, profit-sharing, stock option or similar plan or program established from time to time by the Trust for the benefit of its employees.
b. Vacation and Sick Leave. Executive will be entitled to such periods of paid vacation and sick leave allowance each year (not less than four weeks) that are consistent with the Trust's vacation and sick leave policy for senior management.
c. Business Expenses. The Trust will pay or reimburse Executive for all business-related expenses incurred by Executive in the course of his performance of duties under this Agreement, subject to the procedures established by the Trust from time to time with respect
to incurrence, substantiation, reasonableness and approval. The business-related expenses to be paid for or reimbursed by the Trust hereunder will include those expenses paid for or reimbursed by Ramco Management for the benefit of Executive for the year ending December 31, 1995, including professional licensing and association fees and dues, professional journal subscriptions and errors and omissions insurance coverage.
d. Stock Options. Executive shall be entitled to participate in employee stock option plans from time to time established for the benefit of employees of the Trust in accordance with the terms and conditions of such plans. On the date hereof, Executive shall receive a grant of 24,000 stock options pursuant to the Trust's 1996 Share Option Plan, which options shall vest in three equal annual installments on the first, second and third anniversaries of the date hereof. The option exercise price with respect to the stock options granted on the date hereof shall be equal to $16.00 per share. None of the terms of any such option shall be modified without Executive's consent. Within 60 days after the date hereof, the Trust shall file a registration statement on Form S-8 registering under the Securities Act of 1933, as amended (the "Securities Act") the shares of beneficial interest of the Trust sold to Executive upon the exercise of the options granted to Executive pursuant to this paragraph 4(d) (collectively, the "Registrable Securities"). The Trust shall use commercially reasonable efforts to maintain the effectiveness of such registration statement under the Securities Act until the earlier of (i) the date the Registrable Securities are no longer eligible for registration on Form S-8 or (ii) the date the Registrable Securities are permitted to be disposed of pursuant to Rule 144(k) (or any successor rule) under the Securities Act.
5. TERMINATION OF EMPLOYMENT.
a. Death and Disability. Executive's employment under this Agreement will terminate immediately upon his death and upon 30 days' prior written notice given by the Trust in the event Executive is determined to be "permanently disabled" (as defined below).
b. For Cause. The Trust may terminate Executive's employment under this Agreement for "Cause" (as defined below), upon providing Executive 30 days' prior written notice of termination, which notice will describe in detail the basis of such termination and will become effective on the 30th day after Executive's receipt thereof unless Executive (i) cures the alleged violation or other circumstance which was the basis of such termination within such 30-day notice period or (ii) sends, within such 30-day notice period, written notice to the Board of Trustees of the Trust disputing in good faith the existence of Cause and requesting arbitration of such dispute pursuant to paragraph 8 below. During the pendency of the arbitration, Executive will continue to receive all compensation and benefits to which he is entitled hereunder. If the Trust is not successful in obtaining a determination by the arbitrators that there was Cause for termination, the Trust will pay Executive's reasonable expenses, including, without limitation, reasonable attorneys' fees and disbursements, in connection with such dispute resolution.
c. For Good Reason. Executive may terminate his employment under this Agreement for "Good Reason" (as defined below) upon providing the Trust 30 days' prior written
notice of termination, which notice will detail the basis of such termination and will become effective on the 30th day after the Trust's receipt thereof unless the Trust cures the alleged violation or other circumstance which was the basis of such termination within such 30-day notice period.
d. Definitions. For purposes of this Agreement:
(i) Executive will be deemed "permanently disabled" if he becomes unable to discharge his normal duties as contemplated under this Agreement for more than six consecutive months as a result of incapacity due to mental or physical illness by a physician acceptable to Executive and the Trust and paid by the Trust, whose determination will be final and binding. If Executive and the Trust are unable to agree on a physician, Executive and the Trust will each choose one physician who will mutually choose the third physician, whose determination will be final and binding.
(ii) "Cause" means either (A) a material breach by Executive of any material provisions of this Agreement or of the Noncompetition Agreement, but only if, after notice provided in subparagraph (b) above, Executive fails to cure such breach or, if such breach is not subject to cure, fails on an on-going basis thereafter to comply with the provisions of this Agreement or of the Noncompetition Agreement, as the case may be, with respect to which he was in such breach; (B) action by Executive constituting willful malfeasance or gross negligence, having a material adverse effect on the Trust; (C) an act of fraud, misappropriation of funds or embezzlement by Executive in connection with his employment hereunder; or (D) Executive is convicted of, pleads guilty to or confesses to any felony.
(iii) "Good Reason" means the occurrence of any of the following, without the prior written consent of Executive: (A) any substantial diminution of duties, responsibilities or status, or other imposition by the Trust of unreasonable requirements or working conditions on Executive, which are not withdrawn or corrected within a 30-day period following notice by Executive to the Trust of such diminution or imposition; (B) a material breach by the Trust of any of its material obligations under this Agreement, but only if (x) after expiration of the 30-day notice period provided in subparagraph (c) above, the Trust fails to cure such breach or (y) notwithstanding such cure, the Trust willfully and repeatedly breaches its obligations under this Agreement; (C) a relocation of the Trust's principal executive offices or of Executive's principal place of employment to a location more than 25 miles from Southfield, Michigan; (D) if, after any election of Trustees, at least two Ramco Principals are not members of the Board or the Ramco Principals would constitute less than 20% of the members of the Board (provided that at least two of the Ramco Principals are ready, willing and able to serve on the Board); or (E) a "change of control" as defined below.
Notwithstanding the foregoing, if at any time after the date of this Agreement the Ramco Principals own shares or OP Units convertible into less than 15% of the issued and outstanding Shares of the Trust, clause (D) shall be inapplicable and shall not be deemed "good reason" for termination of employment. Executive will be deemed not to have consented to any proposal resulting in any of the foregoing changes unless he will have given written notice of his consent thereto to the Board of Trustees of the Trust within fifteen (15) days after receipt of a written proposal describing the change. If Executive will not give such consent, the Trust will have the opportunity to withdraw such proposed change by written notice to Executive given within 15 days after expiration of the foregoing 15-day period.
(iv) A "change in control" shall occur if any person or group of commonly controlled persons, other than the Ramco Principals or their affiliates, owns or controls, directly or indirectly, more than twenty-five percent (25%) of the voting control or value of the capital stock of the Trust, or of securities convertible into or exchangeable for capital stock of the Trust.
6. BENEFITS UPON TERMINATION.
a. Termination upon Death or Permanent Disability. Upon termination of Executive's employment under this Agreement resulting from his death or permanent disability, the Trust will remain obligated to pay to Executive or his legal representatives his Base Salary and bonus, as provided in paragraph 3 above, for an additional period equal to 12 months from the effective date of termination (such additional period being referred to in this Agreement as the "Severance Period"). In the event of a termination upon Executive's permanent disability, Executive will also remain entitled to receive, during the Severance Period, those fringe benefits specified in paragraph 4 above, including coverage under all insurance programs and plans. The payment of such Base Salary and bonus will be made during the Severance Period at the same times as such amounts would have been paid pursuant to paragraph 3 above had Executive's employment not have been terminated and had the Term expired at the end of the Severance Period.
b. Termination with Cause or Resignation. Upon termination of Executive's employment by the Trust pursuant to paragraph 5(b) above or a voluntary resignation by Executive (other than for Good Reason pursuant to paragraph 5(c) above), the Trust will remain obligated to pay Executive only the unpaid portion of his Base Salary, bonus and benefits (including the value of any untaken vacation time to the extent Executive has, during the year in which such termination occurs, taken less vacation time than permitted to him hereunder), to the extent accrued through the effective date of termination. Any amount due under this subparagraph will be payable within 30 days after the date of termination.
c. Termination without Cause or for Good Reason. Upon termination of Executive's employment (x) by the Trust other than for Cause or upon Executive's death or
permanent disability or (y) by Executive for Good Reason, Executive will be entitled to the benefits provided below:
(i) the Trust will pay Executive his Base Salary through the date of termination;
(ii) the Trust will pay as severance pay to Executive, not later
than the 30th day following the date of termination, a lump sum
severance payment (the "Severance Payment") equal to the greater of
(x) the aggregate of all compensation due to Executive hereunder
during the balance of the Term, assuming that the annual bonuses
payable to Executive during such period will equal the average of the
annual bonuses paid to Executive under this Agreement prior to
termination of employment, or (y) 2.99 times (or, after the second
anniversary of the date of this Agreement, 1.99 times) the "base
amount" within the meaning of Sections 280G(b)(3) and 280G(d) of the
Internal Revenue Code of 1986, as amended (the "Code"), and any
applicable temporary or final regulations promulgated thereunder, or
its equivalent as provided in any successor statute or regulation. If
Section 280G of the Code (and any successor provisions thereto) is
repealed or otherwise inapplicable, then the Severance Payment will
equal 2.99 (or, after the second anniversary of this agreement, 1.99
times) times the average of Executive's annual compensation for both
complete and partial calendar years during so much of the five
calendar year period preceding the calendar year in which the
termination occurs during which Executive was so employed, determined
by analyzing any compensation (other than non-recurring items)
includable in Executive's gross income for any partial calendar year
and then adding such non-recurring items to such annualized
compensation. Compensation payable to Executive by the Trust will
include every type and form of compensation includable in Executive's
gross income in respect of his employment by the Trust, including
compensation income recognized as a result of Executive's exercise of
stock options or sale of the stock so acquired, except to the extent
otherwise provided in Section 280G of the Code and any temporary or
final regulations promulgated thereunder;
(iii) if in the opinion of tax counsel elected by Executive and
reasonably acceptable to the Trust, any portion of any payment made to
Executive, including without limitation, the Severance Payment
constitutes an excess "parachute payment" within the meaning of
Section 280G(b)(1) of the Code, the Trust will pay Executive an
additional amount (the "Additional Amount") equal to the sum of (i)
all taxes payable by Executive under Section 4999 of the Code with
respect to the Severance Payment and the Additional Amount, plus (ii)
all federal, state or local income taxes payable by Executive with
respect to the Additional Amount; and
(iv) for the duration of the Term, those fringe benefits specified in paragraph 4(a) above, including coverage under all insurance programs and plans.
d. No Mitigation. Executive will not be required to mitigate the amount of any payment provided for in this paragraph 6 by seeking other employment or otherwise, nor will the amount of any payment or benefit provided for in this paragraph 6 be reduced by any compensation earned by him as the result of employment by another employer or by retirement benefits after the date of termination, or otherwise.
e. Expiration of this Agreement. In the event the Term of this Agreement expires without having otherwise been previously terminated pursuant to paragraph 5 above or by the Trust without cause, Executive will not be entitled to any severance compensation whatsoever under this paragraph 6.
7. INDEMNIFICATION. To the full extent permitted by applicable law, Executive shall be indemnified and held harmless for any action or failure to act in his capacity as a director, trustee, officer or employee of the Trust. In furtherance of the foregoing and not by way of limitation, if Executive is a party or is threatened to be made a party to any suit because he is a director, trustee, officer or employee of the Trust, he shall be indemnified against expenses, including attorney's fees, judgments, fines and amounts paid in settlement if he acted in good faith and in a manner reasonably believed to be in or not opposed to the best interest of the Trust, and with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. Indemnification under this Section shall be in addition to any other indemnification by the Trust of its officers and trustees. Expenses incurred by the Executive in defending an action, suit or proceeding for which he claims the right to be indemnified pursuant to this Section shall be paid by the Trust in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the Executive to repay such amount in the event that it shall ultimately be determined that he is not entitled to indemnification by the Trust. Such undertaking shall be accepted without reference to the financial ability of such Executive to make repayment. The Trust shall use commercially reasonable efforts to maintain in effect for the Term of this Agreement a directors' and officers' liability insurance policy, with a policy limit of at least $10,000,000 (which may be spread over a multiple year period), subject to customary exclusions, with respect to claims made against officers and directors of the Trust; provided, however, the Trust shall be relieved of this obligation to maintain directors' and officers' liability insurance if, in the good faith judgment of the Trust, it cannot be obtained at a reasonable cost.
8. ARBITRATION. The parties hereto will endeavor to resolve in good faith any controversy, disagreement or claim arising between them, whether as to the interpretation, performance or operation of this Agreement or any rights or obligations hereunder. If they are unable to do so, any such controversy, disagreement or claim will be submitted to binding arbitration, for final resolution without appeal, by either party giving written notice to the other of the existence of a dispute which it desires to have arbitrated. The arbitration will be conducted in Detroit, Michigan by a panel of three (3) arbitrators and will be held in accordance with the
rules of the American Arbitration Association. Of the three arbitrators, one will be selected by the Trust, one will be selected by Executive and the third will be selected by the two arbitrators so selected. Each party will notify the other party of the arbitrator selected by him or it within fifteen (15) days after the giving of the written notice referred to in this paragraph 8. The decision and award of the arbitrators must be in writing and will be final and binding upon the parties hereto, with the same effect as an arbitration pursuant to Michigan Compiled Laws Annotated Section 600.5001. Judgment upon the award may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The expenses of arbitration will be borne in accordance with the determination of the arbitrators with respect thereto, except as otherwise specified in paragraph 5(b) above. Pending a decision by the arbitrators with respect to the dispute or difference undergoing arbitration, all other obligations of the parties will continue as stipulated herein, and all monies not directly involved in such dispute or difference will be paid when due.
9. MISCELLANEOUS.
a. Executive represents and warrants that he is not a party to any agreement, contract or understanding, whether employment or otherwise, which would restrict or prohibit him from undertaking or performing employment in accordance with the terms and conditions of this Agreement.
b. The provisions of this Agreement are severable and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions and any partially unenforceable provision to the extent enforceable in any jurisdiction will remain binding and enforceable.
c. The rights and obligations of the Trust under this Agreement inure to the benefit of, and will be binding on, the Trust and its successors and permitted assigns, and the rights and obligations (other than obligations to perform services) of Executive under this Agreement will inure to the benefit of, and will be binding upon, Executive and his heirs, personal representatives and permitted assigns; provided, however, Executive shall not be entitled to assign or delegate any of his rights and obligations under this Agreement without the prior written consent of the Trust; provided, further, that the Trust shall not have the right to assign or delegate any of its rights or obligations under this Agreement except to a corporation, partnership or other business entity that is, directly or indirectly, controlled by the Trust.
d. Any notice to be given under this Agreement will be personally delivered in writing or will have been deemed duly given when received after it is posted in the United States mail, postage prepaid, registered or certified, return receipt requested, and if mailed to the Trust, will be addressed to its principal place of business, attention: Secretary, and if mailed to Executive, will be addressed to him at his home address last known on the records of the Trust or at such other address or addresses as either the Trust or Executive may hereafter designate in writing to the other.
e. The failure of either party to enforce any provision or provisions of this Agreement will not in any way be construed as a waiver of any such provision or provisions as to any future violations thereof, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. The rights granted the parties herein are cumulative and the waiver of any single remedy will not constitute a waiver of such party's right to assert all other legal remedies available to it under the circumstances.
f. This Agreement will be governed by and construed according to the laws of the State of Michigan.
g. Captions and paragraph headings used herein are for convenience and are not a part of this Agreement and will not be used in construing it.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
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Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Michael A. Ward
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Michael A. Ward
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EXHIBIT A
Bonus Calculation
The bonus compensation payable to Executive pursuant to paragraph 3(b), for each year of the Agreement, will equal the following:
(a) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase less than 5% from the Company's Funds From Operation per outstanding Share for the previous year, then 0%;
(b) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase at least 5% but less than 7% from the Trust's Funds From Operation per outstanding Share for the previous year, then 15% of Executive's Base Salary for the year for which the bonus is to be paid;
(c) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase at least 7% but less than 10% from the Trust's Funds From Operation per outstanding Share for the previous year, then 22.5% of Executive's Base Salary for the year for which the bonus is to be paid;
(d) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase at least 10% but less than 15% from the Trust's Funds From Operation per outstanding Share for the previous year, then 30% of Executive's Base Salary for the year for which the bonus is to be paid;
(e) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase by 15% or more from the Trust's Funds From Operation per outstanding Share for the previous year, then 50% of Executive's Base Salary for the year for which the bonus is to be paid.
EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of May 10, 1996, is entered into between RAMCO-GERSHENSON PROPERTIES TRUST, formerly known as RPS Realty Trust, a Massachusetts business trust (the "Trust"), and RICHARD GERSHENSON ("Executive"). Capitalized terms used but not otherwise defined in this Agreement shall have the meanings set forth in the Amended and Restated Master Agreement, dated as of December 27, 1995, as amended by the First Amendment to Amended and Restated Master Agreement dated March 19, 1996, by and among RPS Realty Trust, a Massachusetts business trust, Ramco-Gershenson, Inc., a Michigan corporation, Joel Gershenson, Dennis Gershenson, Bruce Gershenson, Richard Gershenson, Michael A. Ward, Michael A. Ward, Trustee U/T/A dated 2/22/77, as amended, Ramco-Gershenson Properties, L.P., a Delaware limited partnership and the Ramco Contributing Parties listed on Schedule A attached thereto (as amended, the "Master Agreement").
RECITALS
A. The Trust is a business trust intended to be qualified and to operate as a real estate investment trust under the Internal Revenue Code of 1986, as amended.
B. The Trust is the general partner of Ramco-Gershenson Properties, L.P., a Delaware limited partnership (the "Operating Partnership"), which has, among other things, acquired various shopping center properties from Subsidiaries of the Trust and partnerships managed and controlled by Ramco-Gershenson, Inc. ("Ramco Management") or its affiliates.
C. Executive is one of the five principals of Ramco Management (the "Ramco Principals"). The Trust wishes to employ Executive and the other Ramco Principals, and Executive wishes to be employed by the Trust, on the terms and conditions set forth below.
THEREFORE, the parties agree as follows:
1. EMPLOYMENT DUTIES. During the Term (as defined in paragraph 2 below), the Trust will employ Executive as its Executive Vice President and Secretary. Except as permitted by Executive's Noncompetition Agreement with the Trust, Executive will devote substantially all of his business time and attention to the performance of his duties under this Agreement. Executive initially shall have the duties, rights and responsibilities normally associated with his position with the Trust consistent with the Amended and Restated Declaration of Trust of the Trust, as amended, together with such other reasonable duties relating to the operation of the business of the Trust and its affiliates as may be assigned to him from time to time by the Board of Trustees of the Trust (the "Board") or may otherwise be provided for in such Bylaws. If the
Trust shall so request, Executive shall become and shall, at any time during the term of this Agreement as the Trust shall so request, act as a trustee of the Trust and/or as an officer and/or director of any of the Subsidiaries of the Trust as they may now exist or may be established by the Trust in the future without any compensation other than that provided for in paragraph 3.
2. TERM. The term of Executive's employment under this Agreement (the "Term") will begin on the date of this Agreement and will continue, subject to the termination provisions set forth in paragraph 5 below, until the third anniversary of the date hereof; provided that, if the Board has considered whether or not to extend the Term at a meeting held not more than 90 days or less than 30 days prior to the expiration of the Term, the Term will automatically be extended for one year unless either the Trust or Executive gives written notice of non-extension to the other at least 20 days prior to the expiration of the Term.
3. SALARY AND BONUS.
a. Salary. During each year of the Term, Executive will receive a salary at the annual rate of $100,000, which salary will be subject to increase as set forth below (as so increased, the "Base Salary"). The Compensation Committee of the Trust's Board of Trustees (the "Committee") will review Executive's Base Salary on an annual basis, and the Committee, upon such review and in its sole discretion, may increase or decrease the Base Salary by an amount which the Committee deems appropriate in light of the Trust's and Executive's performance during the period covered by such review; provided, however, that the Base Salary will not be reduced below $100,000 per annum. The Base Salary will be payable to Executive in accordance with the Trust's standard payroll practices.
b. Bonus. In addition to the Base Salary, the Trust will pay to Executive performance-based bonus compensation for each fiscal year of the Trust, not later than 60 days following the end of each fiscal year or the expiration of the Term as a result of the nonextension thereof or as otherwise specified in paragraph 6 below, as the case may be, prorated on a per diem basis for partial fiscal years, as determined by the Committee but not less than that determined and calculated in accordance with the formula set forth on Exhibit "A" hereto.
4. FRINGE BENEFITS. In addition to the other compensation payable pursuant to this Agreement, during the Term:
a. Standard Benefits. Executive will be entitled to receive such fringe benefits and perquisites, including medical, dental, disability and life insurance, as are generally made available from time to time to management employees and Executives of the Trust and as was provided to Executive by Ramco Management on December 31, 1995, and to participate in any pension, profit-sharing, stock option or similar plan or program established from time to time by the Trust for the benefit of its employees.
b. Vacation and Sick Leave. Executive will be entitled to such periods of paid vacation and sick leave allowance each year (not less than four weeks) that are consistent with the Trust's vacation and sick leave policy for senior management.
c. Business Expenses. The Trust will pay or reimburse Executive for all business-related expenses incurred by Executive in the course of his performance of duties under this Agreement, subject to the procedures established by the Trust from time to time with respect to incurrence, substantiation, reasonableness and approval. The business-related expenses to be paid for or reimbursed by the Trust hereunder will include those expenses paid for or reimbursed by Ramco Management for the benefit of Executive for the year ending December 31, 1995, including professional licensing and association fees and dues, professional journal subscriptions and errors and omissions insurance coverage.
d. Stock Options. Executive shall be entitled to participate in employee stock option plans from time to time established for the benefit of employees of the Trust in accordance with the terms and conditions of such plans. On the date hereof, Executive shall receive a grant of 24,000 stock options pursuant to the Trust's 1996 Share Option Plan, which options shall vest in three equal annual installments on the first, second and third anniversaries of the date hereof. The option exercise price with respect to the stock options granted on the date hereof shall be equal to $16.00 per share. None of the terms of any such option shall be modified without Executive's consent. Within 60 days after the date hereof, the Trust shall file a registration statement on Form S-8 registering under the Securities Act of 1933, as amended (the "Securities Act") the shares of beneficial interest of the Trust sold to Executive upon the exercise of the options granted to Executive pursuant to this paragraph 4(d) (collectively, the "Registrable Securities"). The Trust shall use commercially reasonable efforts to maintain the effectiveness of such registration statement under the Securities Act until the earlier of (i) the date the Registrable Securities are no longer eligible for registration on Form S-8 or (ii) the date the Registrable Securities are permitted to be disposed of pursuant to Rule 144(k) (or any successor rule) under the Securities Act.
5. TERMINATION OF EMPLOYMENT.
a. Death and Disability. Executive's employment under this Agreement will terminate immediately upon his death and upon 30 days' prior written notice given by the Trust in the event Executive is determined to be "permanently disabled" (as defined below).
b. For Cause. The Trust may terminate Executive's employment under this Agreement for "Cause" (as defined below), upon providing Executive 30 days' prior written notice of termination, which notice will describe in detail the basis of such termination and will become effective on the 30th day after Executive's receipt thereof unless Executive (i) cures the alleged violation or other circumstance which was the basis of such termination within such 30-day notice period or (ii) sends, within such 30-day notice period, written notice to the Board of Trustees of the Trust disputing in good faith the existence of Cause and requesting arbitration of such dispute pursuant to paragraph 8 below. During the pendency of the arbitration, Executive
will continue to receive all compensation and benefits to which he is entitled hereunder. If the Trust is not successful in obtaining a determination by the arbitrators that there was Cause for termination, the Trust will pay Executive's reasonable expenses, including, without limitation, reasonable attorneys' fees and disbursements, in connection with such dispute resolution.
c. For Good Reason. Executive may terminate his employment under this Agreement for "Good Reason" (as defined below) upon providing the Trust 30 days' prior written notice of termination, which notice will detail the basis of such termination and will become effective on the 30th day after the Trust's receipt thereof unless the Trust cures the alleged violation or other circumstance which was the basis of such termination within such 30-day notice period.
d. Definitions. For purposes of this Agreement:
(i) Executive will be deemed "permanently disabled" if he becomes unable to discharge his normal duties as contemplated under this Agreement for more than six consecutive months as a result of incapacity due to mental or physical illness by a physician acceptable to Executive and the Trust and paid by the Trust, whose determination will be final and binding. If Executive and the Trust are unable to agree on a physician, Executive and the Trust will each choose one physician who will mutually choose the third physician, whose determination will be final and binding.
(ii) "Cause" means either (A) a material breach by Executive of any material provisions of this Agreement or of the Noncompetition Agreement, but only if, after notice provided in subparagraph (b) above, Executive fails to cure such breach or, if such breach is not subject to cure, fails on an on-going basis thereafter to comply with the provisions of this Agreement or of the Noncompetition Agreement, as the case may be, with respect to which he was in such breach; (B) action by Executive constituting willful malfeasance or gross negligence, having a material adverse effect on the Trust; (C) an act of fraud, misappropriation of funds or embezzlement by Executive in connection with his employment hereunder; or (D) Executive is convicted of, pleads guilty to or confesses to any felony.
(iii) "Good Reason" means the occurrence of any of the following, without the prior written consent of Executive: (A) any substantial diminution of duties, responsibilities or status, or other imposition by the Trust of unreasonable requirements or working conditions on Executive, which are not withdrawn or corrected within a 30-day period following notice by Executive to the Trust of such diminution or imposition; (B) a material breach by the Trust of any of its material obligations under this Agreement, but only if (x) after expiration of the 30-day notice period provided in subparagraph (c) above, the Trust fails to cure such breach or (y) notwithstanding such cure, the Trust willfully and repeatedly
breaches its obligations under this Agreement; (C) a relocation of the Trust's principal executive offices or of Executive's principal place of employment to a location more than 25 miles from Southfield, Michigan; (D) if, after any election of Trustees, at least two Ramco Principals are not members of the Board or the Ramco Principals would constitute less than 20% of the members of the Board (provided that at least two of the Ramco Principals are ready, willing and able to serve on the Board); or (E) a "change of control" as defined below. Notwithstanding the foregoing, if at any time after the date of this Agreement the Ramco Principals own shares or OP Units convertible into less than 15% of the issued and outstanding Shares of the Trust, clause (D) shall be inapplicable and shall not be deemed "good reason" for termination of employment. Executive will be deemed not to have consented to any proposal resulting in any of the foregoing changes unless he will have given written notice of his consent thereto to the Board of Trustees of the Trust within fifteen (15) days after receipt of a written proposal describing the change. If Executive will not give such consent, the Trust will have the opportunity to withdraw such proposed change by written notice to Executive given within 15 days after expiration of the foregoing 15-day period.
(iv) A "change in control" shall occur if any person or group of commonly controlled persons, other than the Ramco Principals or their affiliates, owns or controls, directly or indirectly, more than twenty-five percent (25%) of the voting control or value of the capital stock of the Trust, or of securities convertible into or exchangeable for capital stock of the Trust.
6. BENEFITS UPON TERMINATION.
a. Termination upon Death or Permanent Disability. Upon termination of Executive's employment under this Agreement resulting from his death or permanent disability, the Trust will remain obligated to pay to Executive or his legal representatives his Base Salary and bonus, as provided in paragraph 3 above, for an additional period equal to 12 months from the effective date of termination (such additional period being referred to in this Agreement as the "Severance Period"). In the event of a termination upon Executive's permanent disability, Executive will also remain entitled to receive, during the Severance Period, those fringe benefits specified in paragraph 4 above, including coverage under all insurance programs and plans. The payment of such Base Salary and bonus will be made during the Severance Period at the same times as such amounts would have been paid pursuant to paragraph 3 above had Executive's employment not have been terminated and had the Term expired at the end of the Severance Period.
b. Termination with Cause or Resignation. Upon termination of Executive's employment by the Trust pursuant to paragraph 5(b) above or a voluntary resignation by Executive (other than for Good Reason pursuant to paragraph 5(c) above), the Trust will remain obligated to pay Executive only the unpaid portion of his Base Salary, bonus and benefits (including the value of any untaken vacation time to the extent Executive has, during the year
in which such termination occurs, taken less vacation time than permitted to him hereunder), to the extent accrued through the effective date of termination. Any amount due under this subparagraph will be payable within 30 days after the date of termination.
c. Termination without Cause or for Good Reason. Upon termination of Executive's employment (x) by the Trust other than for Cause or upon Executive's death or permanent disability or (y) by Executive for Good Reason, Executive will be entitled to the benefits provided below:
(i) the Trust will pay Executive his Base Salary through the date of termination;
(ii) the Trust will pay as severance pay to Executive, not
later than the 30th day following the date of termination, a lump
sum severance payment (the "Severance Payment") equal to the
greater of (x) the aggregate of all compensation due to Executive
hereunder during the balance of the Term, assuming that the annual
bonuses payable to Executive during such period will equal the
average of the annual bonuses paid to Executive under this
Agreement prior to termination of employment, or (y) 2.99 times
(or, after the second anniversary of the date of this Agreement,
1.99 times) the "base amount" within the meaning of Sections
280G(b)(3) and 280G(d) of the Internal Revenue Code of 1986, as
amended (the "Code"), and any applicable temporary or final
regulations promulgated thereunder, or its equivalent as provided
in any successor statute or regulation. If Section 280G of the
Code (and any successor provisions thereto) is repealed or
otherwise inapplicable, then the Severance Payment will equal 2.99
(or, after the second anniversary of this agreement, 1.99 times)
times the average of Executive's annual compensation for both
complete and partial calendar years during so much of the five
calendar year period preceding the calendar year in which the
termination occurs during which Executive was so employed,
determined by analyzing any compensation (other than non-recurring
items) includable in Executive's gross income for any partial
calendar year and then adding such non-recurring items to such
annualized compensation. Compensation payable to Executive by the
Trust will include every type and form of compensation includable
in Executive's gross income in respect of his employment by the
Trust, including compensation income recognized as a result of
Executive's exercise of stock options or sale of the stock so
acquired, except to the extent otherwise provided in Section 280G
of the Code and any temporary or final regulations promulgated
thereunder;
(iii) if in the opinion of tax counsel elected by Executive and reasonably acceptable to the Trust, any portion of any payment made to Executive, including without limitation, the Severance Payment constitutes an excess "parachute payment" within the meaning of Section 280G(b)(1) of the Code, the Trust will pay Executive an additional amount (the "Additional Amount") equal to the sum
of (i) all taxes payable by Executive under Section 4999 of the Code with respect to the Severance Payment and the Additional Amount, plus (ii) all federal, state or local income taxes payable by Executive with respect to the Additional Amount; and
(iv) for the duration of the Term, those fringe benefits specified in paragraph 4(a) above, including coverage under all insurance programs and plans.
d. No Mitigation. Executive will not be required to mitigate the amount of any payment provided for in this paragraph 6 by seeking other employment or otherwise, nor will the amount of any payment or benefit provided for in this paragraph 6 be reduced by any compensation earned by him as the result of employment by another employer or by retirement benefits after the date of termination, or otherwise.
e. Expiration of this Agreement. In the event the Term of this Agreement expires without having otherwise been previously terminated pursuant to paragraph 5 above or by the Trust without cause, Executive will not be entitled to any severance compensation whatsoever under this paragraph 6.
7. INDEMNIFICATION. To the full extent permitted by applicable law, Executive shall be indemnified and held harmless for any action or failure to act in his capacity as a director, trustee, officer or employee of the Trust. In furtherance of the foregoing and not by way of limitation, if Executive is a party or is threatened to be made a party to any suit because he is a director, trustee, officer or employee of the Trust, he shall be indemnified against expenses, including attorney's fees, judgments, fines and amounts paid in settlement if he acted in good faith and in a manner reasonably believed to be in or not opposed to the best interest of the Trust, and with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. Indemnification under this Section shall be in addition to any other indemnification by the Trust of its officers and trustees. Expenses incurred by the Executive in defending an action, suit or proceeding for which he claims the right to be indemnified pursuant to this Section shall be paid by the Trust in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the Executive to repay such amount in the event that it shall ultimately be determined that he is not entitled to indemnification by the Trust. Such undertaking shall be accepted without reference to the financial ability of such Executive to make repayment. The Trust shall use commercially reasonable efforts to maintain in effect for the Term of this Agreement a directors' and officers' liability insurance policy, with a policy limit of at least $10,000,000 (which may be spread over a multiple year period), subject to customary exclusions, with respect to claims made against officers and directors of the Trust; provided, however, the Trust shall be relieved of this obligation to maintain directors' and officers' liability insurance if, in the good faith judgment of the Trust, it cannot be obtained at a reasonable cost.
8. ARBITRATION. The parties hereto will endeavor to resolve in good faith any controversy, disagreement or claim arising between them, whether as to the interpretation,
performance or operation of this Agreement or any rights or obligations hereunder. If they are unable to do so, any such controversy, disagreement or claim will be submitted to binding arbitration, for final resolution without appeal, by either party giving written notice to the other of the existence of a dispute which it desires to have arbitrated. The arbitration will be conducted in Detroit, Michigan by a panel of three (3) arbitrators and will be held in accordance with the rules of the American Arbitration Association. Of the three arbitrators, one will be selected by the Trust, one will be selected by Executive and the third will be selected by the two arbitrators so selected. Each party will notify the other party of the arbitrator selected by him or it within fifteen (15) days after the giving of the written notice referred to in this paragraph 8. The decision and award of the arbitrators must be in writing and will be final and binding upon the parties hereto, with the same effect as an arbitration pursuant to Michigan Compiled Laws Annotated Section 600.5001. Judgment upon the award may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The expenses of arbitration will be borne in accordance with the determination of the arbitrators with respect thereto, except as otherwise specified in paragraph 5(b) above. Pending a decision by the arbitrators with respect to the dispute or difference undergoing arbitration, all other obligations of the parties will continue as stipulated herein, and all monies not directly involved in such dispute or difference will be paid when due.
9. MISCELLANEOUS.
a. Executive represents and warrants that he is not a party to any agreement, contract or understanding, whether employment or otherwise, which would restrict or prohibit him from undertaking or performing employment in accordance with the terms and conditions of this Agreement.
b. The provisions of this Agreement are severable and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions and any partially unenforceable provision to the extent enforceable in any jurisdiction will remain binding and enforceable.
c. The rights and obligations of the Trust under this Agreement inure to the benefit of, and will be binding on, the Trust and its successors and permitted assigns, and the rights and obligations (other than obligations to perform services) of Executive under this Agreement will inure to the benefit of, and will be binding upon, Executive and his heirs, personal representatives and permitted assigns; provided, however, Executive shall not be entitled to assign or delegate any of his rights and obligations under this Agreement without the prior written consent of the Trust; provided, further, that the Trust shall not have the right to assign or delegate any of its rights or obligations under this Agreement except to a corporation, partnership or other business entity that is, directly or indirectly, controlled by the Trust.
d. Any notice to be given under this Agreement will be personally delivered in writing or will have been deemed duly given when received after it is posted in the United States mail, postage prepaid, registered or certified, return receipt requested, and if mailed to the Trust, will be addressed to its principal place of business, attention: Secretary, and if mailed to Executive, will be addressed to him at his home address last known on the records of the Trust or at such other address or addresses as either the Trust or Executive may hereafter designate in writing to the other.
e. The failure of either party to enforce any provision or provisions of this Agreement will not in any way be construed as a waiver of any such provision or provisions as to any future violations thereof, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. The rights granted the parties herein are cumulative and the waiver of any single remedy will not constitute a waiver of such party's right to assert all other legal remedies available to it under the circumstances.
f. This Agreement will be governed by and construed according to the laws of the State of Michigan.
g. Captions and paragraph headings used herein are for convenience and are not a part of this Agreement and will not be used in construing it.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
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Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Richard Gershenson
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Richard Gershenson
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EXHIBIT A
Bonus Calculation
The bonus compensation payable to Executive pursuant to paragraph 3(b), for each year of the Agreement, will equal the following:
(a) if the Trust's Funds From Operation per outstanding Common Share, on an annualized basis, for the year for which the bonus is to be paid increase less than 5% from the Company's Funds From Operation per outstanding Common Share for the previous year, then 0%;
(b) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase at least 5% but less than 7% from the Trust's Funds From Operation per outstanding Share for the previous year, then 15% of Executive's Base Salary for the year for which the bonus is to be paid;
(c) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase at least 7% but less than 10% from the Trust's Funds From Operation per outstanding Share for the previous year, then 22.5% of Executive's Base Salary for the year for which the bonus is to be paid;
(d) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase at least 10% but less than 15% from the Trust's Funds From Operation per outstanding Share for the previous year, then 30% of Executive's Base Salary for the year for which the bonus is to be paid;
(e) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase by 15% or more from the Trust's Funds From Operation per outstanding Share for the previous year, then 50%; of Executive's Base Salary
for the year for which the bonus is to be paid.
EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of May 10, 1996, is entered into between RAMCO-GERSHENSON PROPERTIES TRUST, formerly known as RPS Realty Trust, a Massachusetts business trust (the "Trust"), and BRUCE GERSHENSON ("Executive"). Capitalized terms used but not otherwise defined in this Agreement shall have the meanings set forth in the Amended and Restated Master Agreement, dated as of December 27, 1995, as amended by the First Amendment to Amended and Restated Master Agreement dated March 19, 1996, by and among RPS Realty Trust, a Massachusetts business trust, Ramco-Gershenson, Inc., a Michigan corporation, Joel Gershenson, Dennis Gershenson, Bruce Gershenson, Richard Gershenson, Michael A. Ward, Michael A. Ward, Trustee U/T/A dated 2/22/77, as amended, Ramco-Gershenson Properties, L.P., a Delaware limited partnership and the Ramco Contributing Parties listed on Schedule A attached thereto (as amended, the "Master Agreement").
RECITALS
A. The Trust is a business trust intended to be qualified and to operate as a real estate investment trust under the Internal Revenue Code of 1986, as amended.
B. The Trust is the general partner of Ramco-Gershenson Properties, L.P., a Delaware limited partnership (the "Operating Partnership"), which has, among other things, acquired various shopping center properties from Subsidiaries of the Trust and partnerships managed and controlled by Ramco-Gershenson, Inc. ("Ramco Management") or its affiliates.
C. Executive is one of the five principals of Ramco Management (the "Ramco Principals"). The Trust wishes to employ Executive and the other Ramco Principals, and Executive wishes to be employed by the Trust, on the terms and conditions set forth below.
THEREFORE, the parties agree as follows:
1. EMPLOYMENT DUTIES. During the Term (as defined in paragraph 2 below), the Trust will employ Executive as its Executive Vice President and Treasurer. Except as permitted by Executive's Noncompetition Agreement with the Trust, Executive will devote substantially all of his business time and attention to the performance of his duties under this Agreement. Executive initially shall have the duties, rights and responsibilities normally associated with his position with the Trust consistent with the Amended and Restated Declaration of Trust of the Trust, as amended, together with such other reasonable duties relating to the operation of the business of the Trust and its affiliates as may be assigned to him from time to time by the Board of Trustees of the Trust (the "Board") or may otherwise be provided for in such Bylaws. If the Trust shall so request, Executive shall become and shall, at any time during the term of this Agreement as the Trust shall so request, act as a trustee of the Trust and/or as an officer and/or director of any of the Subsidiaries of the Trust as they may now exist or may be established by the Trust in the future without any compensation other than that provided for in paragraph 3.
2. TERM. The term of Executive's employment under this Agreement (the "Term") will begin on the date of this Agreement and will continue, subject to the termination provisions set forth in paragraph 5 below, until the third anniversary of the date hereof; provided that, if the Board has considered whether or not to extend the Term at a meeting held not more than 90 days or less than 30 days prior to the expiration of the Term, the Term will automatically be extended for one year unless either the Trust or Executive gives written notice of non-extension to the other at least 20 days prior to the expiration of the Term.
3. SALARY AND BONUS.
a. Salary. During each year of the Term, Executive will receive a salary at the annual rate of $100,000, which salary will be subject to increase as set forth below (as so increased, the "Base Salary"). The Compensation Committee of the Trust's Board of Trustees (the "Committee") will review Executive's Base Salary on an annual basis, and the Committee, upon such review and in its sole discretion, may increase or decrease the Base Salary by an amount which the Committee deems appropriate in light of the Trust's and Executive's performance during the period covered by such review; provided, however, that the Base Salary will not be reduced below $100,000 per annum. The Base Salary will be payable to Executive in accordance with the Trust's standard payroll practices.
b. Bonus. In addition to the Base Salary, the Trust will pay to Executive performance-based bonus compensation for each fiscal year of the Trust, not later than 60 days following the end of each fiscal year or the expiration of the Term as a result of the nonextension thereof or as otherwise specified in paragraph 6 below, as the case may be, prorated on a per diem basis for partial fiscal years, as determined by the Committee but not less than that determined and calculated in accordance with the formula set forth on Exhibit "A" hereto.
4. FRINGE BENEFITS. In addition to the other compensation payable pursuant to this Agreement, during the Term:
a. Standard Benefits. Executive will be entitled to receive such fringe benefits and perquisites, including medical, dental, disability and life insurance, as are generally made available from time to time to management employees and Executives of the Trust and as was provided to Executive by Ramco Management on December 31, 1995, and to participate in any pension, profit-sharing, stock option or similar plan or program established from time to time by the Trust for the benefit of its employees.
b. Vacation and Sick Leave. Executive will be entitled to such periods of paid vacation and sick leave allowance each year (not less than four weeks) that are consistent with the Trust's vacation and sick leave policy for senior management.
c. Business Expenses. The Trust will pay or reimburse Executive for all business-related expenses incurred by Executive in the course of his performance of duties under this Agreement, subject to the procedures established by the Trust from time to time with respect
to incurrence, substantiation, reasonableness and approval. The business-related expenses to be paid for or reimbursed by the Trust hereunder will include those expenses paid for or reimbursed by Ramco Management for the benefit of Executive for the year ending December 31, 1995, including professional licensing and association fees and dues, professional journal subscriptions and errors and omissions insurance coverage.
d. Stock Options. Executive shall be entitled to participate in employee stock option plans from time to time established for the benefit of employees of the Trust in accordance with the terms and conditions of such plans. On the date hereof, Executive shall receive a grant of 24,000 stock options pursuant to the Trust's 1996 Share Option Plan, which options shall vest in three equal annual installments on the first, second and third anniversaries of the date hereof. The option exercise price with respect to the stock options granted on the date hereof shall be equal to $16.00 per share. None of the terms of any such option shall be modified without Executive's consent. Within 60 days after the date hereof, the Trust shall file a registration statement on Form S-8 registering under the Securities Act of 1933, as amended (the "Securities Act") the shares of beneficial interest of the Trust sold to Executive upon the exercise of the options granted to Executive pursuant to this paragraph 4(d) (collectively, the "Registrable Securities"). The Trust shall use commercially reasonable efforts to maintain the effectiveness of such registration statement under the Securities Act until the earlier of (i) the date the Registrable Securities are no longer eligible for registration on Form S-8 or (ii) the date the Registrable Securities are permitted to be disposed of pursuant to Rule 144(k) (or any successor rule) under the Securities Act.
5. TERMINATION OF EMPLOYMENT.
a. Death and Disability. Executive's employment under this Agreement will terminate immediately upon his death and upon 30 days' prior written notice given by the Trust in the event Executive is determined to be "permanently disabled" (as defined below).
b. For Cause. The Trust may terminate Executive's employment under this Agreement for "Cause" (as defined below), upon providing Executive 30 days' prior written notice of termination, which notice will describe in detail the basis of such termination and will become effective on the 30th day after Executive's receipt thereof unless Executive (i) cures the alleged violation or other circumstance which was the basis of such termination within such 30-day notice period or (ii) sends, within such 30-day notice period, written notice to the Board of Trustees of the Trust disputing in good faith the existence of Cause and requesting arbitration of such dispute pursuant to paragraph 8 below. During the pendency of the arbitration, Executive will continue to receive all compensation and benefits to which he is entitled hereunder. If the Trust is not successful in obtaining a determination by the arbitrators that there was Cause for termination, the Trust will pay Executive's reasonable expenses, including, without limitation, reasonable attorneys' fees and disbursements, in connection with such dispute resolution.
c. For Good Reason. Executive may terminate his employment under this Agreement for "Good Reason" (as defined below) upon providing the Trust 30 days' prior written
notice of termination, which notice will detail the basis of such termination and will become effective on the 30th day after the Trust's receipt thereof unless the Trust cures the alleged violation or other circumstance which was the basis of such termination within such 30-day notice period.
d. Definitions. For purposes of this Agreement:
(i) Executive will be deemed "permanently disabled" if he becomes unable to discharge his normal duties as contemplated under this Agreement for more than six consecutive months as a result of incapacity due to mental or physical illness by a physician acceptable to Executive and the Trust and paid by the Trust, whose determination will be final and binding. If Executive and the Trust are unable to agree on a physician, Executive and the Trust will each choose one physician who will mutually choose the third physician, whose determination will be final and binding.
(ii) "Cause" means either (A) a material breach by Executive of any material provisions of this Agreement or of the Noncompetition Agreement, but only if, after notice provided in subparagraph (b) above, Executive fails to cure such breach or, if such breach is not subject to cure, fails on an on-going basis thereafter to comply with the provisions of this Agreement or of the Noncompetition Agreement, as the case may be, with respect to which he was in such breach; (B) action by Executive constituting willful malfeasance or gross negligence, having a material adverse effect on the Trust; (C) an act of fraud, misappropriation of funds or embezzlement by Executive in connection with his employment hereunder; or (D) Executive is convicted of, pleads guilty to or confesses to any felony.
(iii) "Good Reason" means the occurrence of any of the following, without the prior written consent of Executive: (A) any substantial diminution of duties, responsibilities or status, or other imposition by the Trust of unreasonable requirements or working conditions on Executive, which are not withdrawn or corrected within a 30-day period following notice by Executive to the Trust of such diminution or imposition; (B) a material breach by the Trust of any of its material obligations under this Agreement, but only if (x) after expiration of the 30-day notice period provided in subparagraph (c) above, the Trust fails to cure such breach or (y) notwithstanding such cure, the Trust willfully and repeatedly breaches its obligations under this Agreement; (C) a relocation of the Trust's principal executive offices or of Executive's principal place of employment to a location more than 25 miles from Southfield, Michigan; (D) if, after any election of Trustees, at least two Ramco Principals are not members of the Board or the Ramco Principals would constitute less than 20% of the members of the Board (provided that at least two of the Ramco Principals are ready, willing and able to serve on the Board); or (E) a "change of control" as defined below.
Notwithstanding the foregoing, if at any time after the date of this
Agreement the Ramco Principals own shares or OP Units convertible
into less than 15% of the issued and outstanding Shares of the
Trust, clause (D) shall be inapplicable and shall not be deemed
"good reason" for termination of employment. Executive will be
deemed not to have consented to any proposal resulting in any of the
foregoing changes unless he will have given written notice of his
consent thereto to the Board of Trustees of the Trust within fifteen
(15) days after receipt of a written proposal describing the change.
If Executive will not give such consent, the Trust will have the
opportunity to withdraw such proposed change by written notice to
Executive given within 15 days after expiration of the foregoing
15-day period.
(iv) A "change in control" shall occur if any person or group of commonly controlled persons, other than the Ramco Principals or their affiliates, owns or controls, directly or indirectly, more than twenty-five percent (25%) of the voting control or value of the capital stock of the Trust, or of securities convertible into or exchangeable for capital stock of the Trust.
6. BENEFITS UPON TERMINATION.
a. Termination upon Death or Permanent Disability. Upon termination of Executive's employment under this Agreement resulting from his death or permanent disability, the Trust will remain obligated to pay to Executive or his legal representatives his Base Salary and bonus, as provided in paragraph 3 above, for an additional period equal to 12 months from the effective date of termination (such additional period being referred to in this Agreement as the "Severance Period"). In the event of a termination upon Executive's permanent disability, Executive will also remain entitled to receive, during the Severance Period, those fringe benefits specified in paragraph 4 above, including coverage under all insurance programs and plans. The payment of such Base Salary and bonus will be made during the Severance Period at the same times as such amounts would have been paid pursuant to paragraph 3 above had Executive's employment not have been terminated and had the Term expired at the end of the Severance Period.
b. Termination with Cause or Resignation. Upon termination of Executive's employment by the Trust pursuant to paragraph 5(b) above or a voluntary resignation by Executive (other than for Good Reason pursuant to paragraph 5(c) above), the Trust will remain obligated to pay Executive only the unpaid portion of his Base Salary, bonus and benefits (including the value of any untaken vacation time to the extent Executive has, during the year in which such termination occurs, taken less vacation time than permitted to him hereunder), to the extent accrued through the effective date of termination. Any amount due under this subparagraph will be payable within 30 days after the date of termination.
c. Termination without Cause or for Good Reason. Upon termination of Executive's employment (x) by the Trust other than for Cause or upon Executive's death or
permanent disability or (y) by Executive for Good Reason, Executive will be entitled to the benefits provided below:
(i) the Trust will pay Executive his Base Salary through the date of termination;
(ii) the Trust will pay as severance pay to Executive, not
later than the 30th day following the date of termination, a lump
sum severance payment (the "Severance Payment") equal to the
greater of (x) the aggregate of all compensation due to Executive
hereunder during the balance of the Term, assuming that the annual
bonuses payable to Executive during such period will equal the
average of the annual bonuses paid to Executive under this
Agreement prior to termination of employment, or (y) 2.99 times
(or, after the second anniversary of the date of this Agreement,
1.99 times) the "base amount" within the meaning of Sections
280G(b)(3) and 280G(d) of the Internal Revenue Code of 1986, as
amended (the "Code"), and any applicable temporary or final
regulations promulgated thereunder, or its equivalent as provided
in any successor statute or regulation. If Section 280G of the
Code (and any successor provisions thereto) is repealed or
otherwise inapplicable, then the Severance Payment will equal 2.99
(or, after the second anniversary of this agreement, 1.99 times)
times the average of Executive's annual compensation for both
complete and partial calendar years during so much of the five
calendar year period preceding the calendar year in which the
termination occurs during which Executive was so employed,
determined by analyzing any compensation (other than non-recurring
items) includable in Executive's gross income for any partial
calendar year and then adding such non-recurring items to such
annualized compensation. Compensation payable to Executive by the
Trust will include every type and form of compensation includable
in Executive's gross income in respect of his employment by the
Trust, including compensation income recognized as a result of
Executive's exercise of stock options or sale of the stock so
acquired, except to the extent otherwise provided in Section 280G
of the Code and any temporary or final regulations promulgated
thereunder;
(iii) if in the opinion of tax counsel elected by Executive and reasonably acceptable to the Trust, any portion of any payment made to Executive, including without limitation, the Severance Payment constitutes an excess "parachute payment" within the meaning of Section 280G(b)(1) of the Code, the Trust will pay Executive an additional amount (the "Additional Amount") equal to the sum of (i) all taxes payable by Executive under Section 4999 of the Code with respect to the Severance Payment and the Additional Amount, plus (ii) all federal, state or local income taxes payable by Executive with respect to the Additional Amount; and
(iv) for the duration of the Term, those fringe benefits specified in paragraph 4(a) above, including coverage under all insurance programs and plans.
d. No Mitigation. Executive will not be required to mitigate the amount of any payment provided for in this paragraph 6 by seeking other employment or otherwise, nor will the amount of any payment or benefit provided for in this paragraph 6 be reduced by any compensation earned by him as the result of employment by another employer or by retirement benefits after the date of termination, or otherwise.
e. Expiration of this Agreement. In the event the Term of this Agreement expires without having otherwise been previously terminated pursuant to paragraph 5 above or by the Trust without cause, Executive will not be entitled to any severance compensation whatsoever under this paragraph 6.
7. INDEMNIFICATION. To the full extent permitted by applicable law, Executive shall be indemnified and held harmless for any action or failure to act in his capacity as a director, trustee, officer or employee of the Trust. In furtherance of the foregoing and not by way of limitation, if Executive is a party or is threatened to be made a party to any suit because he is a director, trustee, officer or employee of the Trust, he shall be indemnified against expenses, including attorney's fees, judgments, fines and amounts paid in settlement if he acted in good faith and in a manner reasonably believed to be in or not opposed to the best interest of the Trust, and with respect to any criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. Indemnification under this Section shall be in addition to any other indemnification by the Trust of its officers and trustees. Expenses incurred by the Executive in defending an action, suit or proceeding for which he claims the right to be indemnified pursuant to this Section shall be paid by the Trust in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the Executive to repay such amount in the event that it shall ultimately be determined that he is not entitled to indemnification by the Trust. Such undertaking shall be accepted without reference to the financial ability of such Executive to make repayment. The Trust shall use commercially reasonable efforts to maintain in effect for the Term of this Agreement a directors' and officers' liability insurance policy, with a policy limit of at least $10,000,000 (which may be spread over a multiple year period), subject to customary exclusions, with respect to claims made against officers and directors of the Trust; provided, however, the Trust shall be relieved of this obligation to maintain directors' and officers' liability insurance if, in the good faith judgment of the Trust, it cannot be obtained at a reasonable cost.
8. ARBITRATION. The parties hereto will endeavor to resolve in good faith any controversy, disagreement or claim arising between them, whether as to the interpretation, performance or operation of this Agreement or any rights or obligations hereunder. If they are unable to do so, any such controversy, disagreement or claim will be submitted to binding arbitration, for final resolution without appeal, by either party giving written notice to the other of the existence of a dispute which it desires to have arbitrated. The arbitration will be conducted in Detroit, Michigan by a panel of three (3) arbitrators and will be held in accordance with the
rules of the American Arbitration Association. Of the three arbitrators, one will be selected by the Trust, one will be selected by Executive and the third will be selected by the two arbitrators so selected. Each party will notify the other party of the arbitrator selected by him or it within fifteen (15) days after the giving of the written notice referred to in this paragraph 8. The decision and award of the arbitrators must be in writing and will be final and binding upon the parties hereto, with the same effect as an arbitration pursuant to Michigan Compiled Laws Annotated Section 600.5001. Judgment upon the award may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The expenses of arbitration will be borne in accordance with the determination of the arbitrators with respect thereto, except as otherwise specified in paragraph 5(b) above. Pending a decision by the arbitrators with respect to the dispute or difference undergoing arbitration, all other obligations of the parties will continue as stipulated herein, and all monies not directly involved in such dispute or difference will be paid when due.
9. MISCELLANEOUS.
a. Executive represents and warrants that he is not a party to any agreement, contract or understanding, whether employment or otherwise, which would restrict or prohibit him from undertaking or performing employment in accordance with the terms and conditions of this Agreement.
b. The provisions of this Agreement are severable and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions and any partially unenforceable provision to the extent enforceable in any jurisdiction will remain binding and enforceable.
c. The rights and obligations of the Trust under this Agreement inure to the benefit of, and will be binding on, the Trust and its successors and permitted assigns, and the rights and obligations (other than obligations to perform services) of Executive under this Agreement will inure to the benefit of, and will be binding upon, Executive and his heirs, personal representatives and permitted assigns; provided, however, Executive shall not be entitled to assign or delegate any of his rights and obligations under this Agreement without the prior written consent of the Trust; provided, further, that the Trust shall not have the right to assign or delegate any of its rights or obligations under this Agreement except to a corporation, partnership or other business entity that is, directly or indirectly, controlled by the Trust.
d. Any notice to be given under this Agreement will be personally delivered in writing or will have been deemed duly given when received after it is posted in the United States mail, postage prepaid, registered or certified, return receipt requested, and if mailed to the Trust, will be addressed to its principal place of business, attention: Secretary, and if mailed to Executive, will be addressed to him at his home address last known on the records of the Trust or at such other address or addresses as either the Trust or Executive may hereafter designate in writing to the other.
e. The failure of either party to enforce any provision or provisions of this Agreement will not in any way be construed as a waiver of any such provision or provisions as to any future violations thereof, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. The rights granted the parties herein are cumulative and the waiver of any single remedy will not constitute a waiver of such party's right to assert all other legal remedies available to it under the circumstances.
f. This Agreement will be governed by and construed according to the laws of the State of Michigan.
g. Captions and paragraph headings used herein are for convenience and are not a part of this Agreement and will not be used in construing it.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
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Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Bruce Gershenson
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Bruce Gershenson
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EXHIBIT A
Bonus Calculation
The bonus compensation payable to Executive pursuant to paragraph 3(b), for each year of the Agreement, will equal the following:
(a) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase less than 5% from the Company's Funds From Operation per outstanding Share for the previous year, then 0%;
(b) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase at least 5% but less than 7% from the Trust's Funds From Operation per outstanding Share for the previous year, then 15% of Executive's Base Salary for the year for which the bonus is to be paid;
(c) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase at least 7% but less than 10% from the Trust's Funds From Operation per outstanding Share for the previous year, then 22.5% of Executive's Base Salary for the year for which the bonus is to be paid;
(d) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase at least 10% but less than 15% from the Trust's Funds From Operation per outstanding Share for the previous year, then 30% of Executive's Base Salary for the year for which the bonus is to be paid;
(e) if the Trust's Funds From Operation per outstanding Share, on an annualized basis for any partial year, with respect to the year for which the bonus relates increase by 15% or more from the Trust's Funds From Operation per outstanding Share for the previous year, then 50% of Executive's Base Salary for the year for which the bonus is to be paid.
EXHIBIT 10.13
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT (this "AGREEMENT") is entered into as of May 10, 1996 by and between Joel Gershenson ("EXECUTIVE") and Ramco-Gershenson Properties Trust, formerly known as RPS Realty Trust, a Massachusetts business trust (the "TRUST").
R E C I T A L S :
A. On the date hereof, the Company (as defined below) and Ramco-Gershenson, Inc. and its affiliates (collectively "RAMCO") have consummated a transaction (the "RAMCO TRANSACTION") pursuant to which the Company and Ramco have contributed cash and properties to Ramco-Gershenson Properties, L.P., a Delaware limited partnership.
B. It was a condition to the consummation of the Ramco Transaction that the Trust and Executive enter into an agreement restricting the activities of Executive that would eliminate potential conflicts of interest that may arise in the future and would otherwise protect the Company's legitimate business interests.
Accordingly, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein shall have the meanings set forth below:
"AFFILIATE" means (i) any entity directly or indirectly controlling (including without limitation an entity for which Executive serves as an officer, director, employee, consultant or other agent), controlled by, or under common control with Executive, and (ii) each other entity in which Executive, directly or indirectly, owns any controlling interest or of which Executive serves as a general partner.
"AGREEMENT" shall have the meaning set forth in the heading of this Agreement.
"COMPANY" means (i) Ramco-Gershenson Properties Trust, formerly known as RPS Realty Trust, (ii) Ramco-Gershenson, Inc., a Michigan corporation, (iii) any corporation, partnership or other business entity that is, directly or indirectly, controlled by or under common control with Ramco-Gershenson Properties Trust and (iv) their respective successors.
"COMPANY PROJECT" means any properties, development land and development out parcels that the Company owns, operates or manages as of the date of Executive's termination of employment with the Company or that the Company has in any manner taken steps to acquire, develop, construct, operate, manage or lease (including without limitation making market surveys of a site, talking to the owner or his agent concerning the purchase or joint venture of a site, optioning or contracting to buy a site or discussions with the owner or his agent regarding managing or leasing
a property) during the twelve (12) month period immediately preceding Executive's termination of employment with the Company.
"COVENANT PERIOD" means the period commencing on the Effective Date and ending on the later of the following:
(i) one year after Executive is no longer an officer or trustee of the
Company and
(ii) four years following the Effective Date.
"EFFECTIVE DATE" means the date of the closing of the Ramco Transaction.
"EMPLOYMENT AGREEMENT" shall mean the Employment Agreement dated the date hereof between the Trust and Executive.
"EXECUTIVE" shall have the meaning set forth in the heading of this Agreement.
"OPERATING PARTNERSHIP" shall have the meaning set forth in Recital A.
"RAMCO" shall have the meaning set forth in Recital A.
"RAMCO TRANSACTION" shall have the meaning set forth in Recital A.
"PROPERTY" means any real property on which shopping center or retail use (or any combination of the foregoing) development has been constructed or is now or hereafter proposed to be constructed or any other type of real property which hereafter the Company may acquire, develop, own, construct, manage or may disclose or authorize any intention, plan or arrangement to acquire, develop, own, construct or manage.
2. Executive's Obligations While Employed by the Company.
(a) Sole Employment. Subject to the provisions of paragraph 2(b) below, Executive agrees to devote substantially his full time during the customary business hours of the Company and give his best efforts to the business of the Company and, during the period of his employment by the Company, Executive shall not engage in any manner, whether as an officer, employee, owner, partner, stockholder, trustee, director, consultant or otherwise, directly or indirectly, in any business other than on behalf of the Company without the prior written approval of the Board of Trustees of the Company, and Executive shall not accept any other employment whatsoever from any other person, firm, corporation or entity.
(b) Exceptions. Notwithstanding the provisions of paragraph 2(a) above and of paragraph 3, Executive may during the term of his employment by the Company and at any time thereafter (i) acquire an interest in any corporation, partnership, venture or other business entity so long as (A) any such interest is a passive investment of Executive, provided such interest does not
represent a direct or indirect interest in any Property, (B) such interest does not afford Executive the power to influence in any material fashion the decision making processes of the entity in which such interest is held and (C) Executive is not the sponsor, promoter or similar initiator of such entity, (ii) continue (W) to serve as a general or limited partner of each of the partnerships which own the Properties identified on Schedule 1, attached hereto and incorporated by this reference, as an officer, director and shareholder of each of the corporations identified on such Schedule 1, and as a beneficiary of the estate properties listed on Schedule 1, (X) to discharge Executive's fiduciary and contractual duties and obligations with respect thereto, even though such limited partnerships and corporations (or any partnership of which any such limited partnership or corporation is a general or limited partner) may directly compete with the Company, (Y) to serve on not more than three (3) Boards of Directors of publicly traded entities and (Z) to serve on the Board of Directors of any charitable institution, and (iii) continue to engage in Executive's existing video arcade and fast food businesses, as those businesses may be expanded in the ordinary course.
3. Executive's Obligations Following Termination of Employment with the Company.
(a) Anti-Pirating of Employees. During the Covenant Period, Executive agrees not to hire, directly or indirectly, or entice or participate in any efforts to entice to leave the Company's employ, any person who was or is a "key employee" (as hereinafter defined) of the Company at any time during the twelve (12) month period immediately preceding the termination date of Executive's employment with the Company. For purposes of this Agreement, "key employee" means an employee who has an annualized rate of base salary equaling or exceeding sixty thousand dollars ($60,000).
(b) Anti-Pirating of Company Projects. During the Covenant Period, Executive agrees not to, directly or indirectly, own, manage, join or control, or participate in the ownership, operation or control of, or be an officer of, director, employee or owner of, or a consultant to, or otherwise authorize the use of his name by, or be connected in any manner with, any business, firm or corporation which engages or attempts to engage, directly or indirectly, in the acquisition, development, construction, operation, management or leasing of any Company Project, other than on behalf of the Company.
(c) Noncompetition. During the Covenant Period, Executive agrees not to, directly or indirectly, own, manage, join or control, or participate in the ownership, operation or control of, or be an officer, director, employee or owner of, or a consultant to, or otherwise authorize the use of his name by, or be connected in any manner with, any business, firm or corporation which at the time or at any time during the Covenant Period is involved in the acquisition, development, construction, operation, management or leasing of any Property within a 200 mile radius of any Company Project that existed at any time during the twelve (12) month period immediately preceding the termination date of Executive's employment with the Company.
(d) Trade Secrets and Confidential Information. Executive hereby agrees that he will hold in a fiduciary capacity for the benefit of the Company, and shall not directly or indirectly use or disclose any Trade Secret (as hereinafter defined), that Executive may have acquired during the term of his employment by the Company for so long as such information remains a Trade Secret. The term "Trade Secret" as used in this Agreement shall mean information including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which:
derives economic value, actual or potential from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and is the subject of reasonable efforts by the Company to maintain its secrecy.
In addition to the foregoing and not in limitation thereof, Executive agrees that during the period of his employment by the Company and the Covenant Period, he will hold in a fiduciary capacity for the benefit of the Company and shall not directly or indirectly use or disclose, any Confidential or Proprietary Information (as hereinafter defined), that Executive may have acquired (whether or not developed or compiled by Executive and whether or not Executive was authorized to have access to such Information) during the term of, in the course of or as a result of his employment by the Company and Ramco. The term "Confidential or Proprietary Information" as used in this Agreement means any secret, confidential or proprietary information of the Company and Ramco not otherwise included in the definition of "Trade Secret" above. The term "Confidential and Proprietary Information" does not include information that has become generally available to the public by the act of one who has the right to disclose such information without violating any right of the Company.
(e) Exceptions. Notwithstanding any provision of paragraph 3(c) to the contrary, Executive shall not be restricted at any time after his termination of employment with the Company from engaging in any activities for which Executive would not be restricted from performing during the term of his employment with the Company as set forth in paragraph 2(b) above.
4. Reasonable and Necessary Restrictions. Executive acknowledges that the restrictions, prohibitions and other provisions hereof, including without limitation the 200-mile radius set forth in paragraph 3(c) and the Covenant Period, are reasonable, fair and equitable in scope, terms and duration, are necessary to protect the legitimate business interests of the Company, and are a material inducement to the Company to enter into the Ramco Transaction. Executive hereby waives, and covenants not to assert in any action or proceeding relating to this Agreement, any claim or defense that there exists an adequate remedy at law for breach of this Agreement.
5. Restrictions In Addition to Employment Agreement. Executive acknowledges that the restrictions, prohibitions and other provisions hereof shall be in addition to and not in
substitution of the restrictions, prohibitions and other provisions of the Employment Agreement, as such agreement shall be amended and supplemented from time to time.
6. Specific Performance. Executive acknowledges that the obligations undertaken by him pursuant to this Agreement are unique and that the Company likely will have no adequate remedy at law if Executive shall fail to perform any of his obligations hereunder, and Executive therefore confirms that the Company's right to specific performance of the terms of this Agreement is essential to protect the rights and interests of the Company. Accordingly, in addition to any other remedies that the Company may have at law or in equity, the Company shall have the right to have all obligations, covenants, agreements and other provisions of this Agreement specifically performed by Executive, and the Company shall have the right to obtain preliminary and permanent injunctive relief to secure specific performance and to prevent a breach or contemplated breach of this Agreement by Executive, and Executive submits to the jurisdiction of the courts of the State of Michigan for this purpose.
7. Operations of Affiliates. Executive agrees that he will refrain from (i) authorizing any Affiliate to perform or (ii) assisting in any manner any Affiliate in performing any activities that would be prohibited by the terms of this Agreement if they were performed by Executive. Notwithstanding anything to the contrary contained in this paragraph 7 (or in any other paragraph of this Agreement), Executive shall not be required by the terms of this Agreement to violate any fiduciary or contractual duty he owes as a director or officer of a corporation, as a partner of a partnership or as a trustee of a trust, which position he holds not in violation of this Agreement or the Employment Agreement.
8. Miscellaneous Provisions.
(a) Binding Effect. Subject to any provisions hereof restricting assignment, all covenants and agreements in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors, assigns, heirs, and personal representatives. None of the parties hereto may assign any of its rights under this Agreement or attempt to have any other person or entity assume any of its obligations hereunder.
(b) Severability. If any clause, provision or section of this Agreement shall be invalid or unenforceable, the invalidity or unenforceability of such clause, provision or section shall not affect the enforceability or validity of any of the remaining clauses, provisions or sections hereof to the extent permitted by applicable law.
(c) Governing Law. This Agreement shall be construed and enforced in accordance with the internal laws of the State of New York, without reference to its rules as to conflicts or choice of laws.
(d) Amendment. This Agreement may not be changed, modified, discharged or amended, except by an instrument signed by all of the parties hereto.
(e) Headings. Paragraph and subparagraph headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.
(f) Pronouns. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or entity may require.
(g) Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.
(h) Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties and supersedes any prior understandings and/or written or oral agreements among them respecting the subject matter herein.
(i) Notices. All notices, requests, demands, consents and other communications required or permitted to be given pursuant to this Agreement shall be in writing and delivered by hand, by overnight courier delivery service or by certified mail, return receipt requested, postage prepaid. Notices shall be deemed given when actually received, which shall be deemed to be no later than the next business day if sent by overnight courier or after five business days if sent by mail. Notice to the Company shall be made at 27600 Northwestern Highway, Suite 200, Southhold, Michigan 48034; Attn: Chairman. Notice to Executive shall be made at the address set forth on the books of the Company.
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement, or caused this Agreement to be duly executed on its behalf, as of the date first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
--------------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Joel Gershenson
--------------------------------------
Joel Gershenson
|
Schedule 1
River's Edge Office Building Waterford, Michigan Summit Complex (Summit Place, Summit Livonia, Michigan Crossing, Summit North) Saginaw, Michigan Livonia Towne Square Sterling Heights, Michigan Bay Towne Plaza Sandusky, Ohio Builders Square (vacant) Toledo, Ohio Park Place Shopping Center North Towne Commons Estate Properties Land Contracts Southfield Properties - GGJ Associates Melvindale Plaza Gershenson-Wittbold Mt. Clemens Nine Mile & Harper Southfield Properties - Plymouth/ Southfield Southfield Properties - Van Born Southfield Properties - Ypsilanti Partnership Interest in Sale/Leaseback Assets Southfield Properties - Southgate Southfield Properties - Westland Partnership Interest in Real Estate Owned in Fee Southfield Properties - Cedar/Jolly Maple & Livernois Plaza G & R Development G & S Realty Company Southfield Properties - Lansing Mart Gershenson-Wittbold Louisville Michigan Mart Associates |
Southfield, Michigan
EXHIBIT 10.14
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT (this "AGREEMENT") is entered into as of May 10, 1996 by and between Dennis Gershenson ("EXECUTIVE") and Ramco-Gershenson Properties Trust, formerly known as RPS Realty Trust, a Massachusetts business trust (the "TRUST").
R E C I T A L S :
A. On the date hereof, the Company (as defined below) and Ramco-Gershenson, Inc. and its affiliates (collectively "RAMCO") have consummated a transaction (the "RAMCO TRANSACTION") pursuant to which the Company and Ramco have contributed cash and properties to Ramco-Gershenson Properties, L.P., a Delaware limited partnership.
B. It was a condition to the consummation of the Ramco Transaction that the Trust and Executive enter into an agreement restricting the activities of Executive that would eliminate potential conflicts of interest that may arise in the future and would otherwise protect the Company's legitimate business interests.
Accordingly, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein shall have the meanings set forth below:
"AFFILIATE" means (i) any entity directly or indirectly controlling (including without limitation an entity for which Executive serves as an officer, director, employee, consultant or other agent), controlled by, or under common control with Executive, and (ii) each other entity in which Executive, directly or indirectly, owns any controlling interest or of which Executive serves as a general partner.
"AGREEMENT" shall have the meaning set forth in the heading of this Agreement.
"COMPANY" means (i) Ramco-Gershenson Properties Trust, formerly known as RPS Realty Trust, (ii) Ramco-Gershenson, Inc., a Michigan corporation, (iii) any corporation, partnership or other business entity that is, directly or indirectly, controlled by or under common control with Ramco-Gershenson Properties Trust and (iv) their respective successors.
"COMPANY PROJECT" means any properties, development land and development out parcels that the Company owns, operates or manages as of the date of Executive's termination of employment with the Company or that the Company has in any manner taken steps to acquire, develop, construct, operate, manage or lease (including without limitation making market surveys of a site, talking to the owner or his agent concerning the purchase or joint venture of a site, optioning or contracting to buy a site or discussions with the owner or his agent regarding managing or leasing
a property) during the twelve (12) month period immediately preceding Executive's termination of employment with the Company.
"COVENANT PERIOD" means the period commencing on the Effective Date and ending on the later of the following:
(i) one year after Executive is no longer an officer or trustee of the
Company and
(ii) four years following the Effective Date.
"EFFECTIVE DATE" means the date of the closing of the Ramco Transaction.
"EMPLOYMENT AGREEMENT" shall mean the Employment Agreement dated the date hereof between the Trust and Executive.
"EXECUTIVE" shall have the meaning set forth in the heading of this Agreement.
"OPERATING PARTNERSHIP" shall have the meaning set forth in Recital A.
"RAMCO" shall have the meaning set forth in Recital A.
"RAMCO TRANSACTION" shall have the meaning set forth in Recital A.
"PROPERTY" means any real property on which shopping center or retail use (or any combination of the foregoing) development has been constructed or is now or hereafter proposed to be constructed or any other type of real property which hereafter the Company may acquire, develop, own, construct, manage or may disclose or authorize any intention, plan or arrangement to acquire, develop, own, construct or manage.
2. Executive's Obligations While Employed by the Company.
(a) Sole Employment. Subject to the provisions of paragraph 2(b) below, Executive agrees to devote substantially his full time during the customary business hours of the Company and give his best efforts to the business of the Company and, during the period of his employment by the Company, Executive shall not engage in any manner, whether as an officer, employee, owner, partner, stockholder, trustee, director, consultant or otherwise, directly or indirectly, in any business other than on behalf of the Company without the prior written approval of the Board of Trustees of the Company, and Executive shall not accept any other employment whatsoever from any other person, firm, corporation or entity.
(b) Exceptions. Notwithstanding the provisions of paragraph 2(a) above and of paragraph 3, Executive may during the term of his employment by the Company and at any time thereafter (i) acquire an interest in any corporation, partnership, venture or other business entity so long as (A) any such interest is a passive investment of Executive, provided such interest does not
represent a direct or indirect interest in any Property, (B) such interest does not afford Executive the power to influence in any material fashion the decision making processes of the entity in which such interest is held and (C) Executive is not the sponsor, promoter or similar initiator of such entity, (ii) continue (W) to serve as a general or limited partner of each of the partnerships which own the Properties identified on Schedule 1, attached hereto and incorporated by this reference, as an officer, director and shareholder of each of the corporations identified on such Schedule 1, and as a beneficiary of the estate properties listed on Schedule 1, (X) to discharge Executive's fiduciary and contractual duties and obligations with respect thereto, even though such limited partnerships and corporations (or any partnership of which any such limited partnership or corporation is a general or limited partner) may directly compete with the Company, (Y) to serve on not more than three (3) Boards of Directors of publicly traded entities and (Z) to serve on the Board of Directors of any charitable institution, and (iii) continue to engage in Executive's existing video arcade and fast food businesses, as those businesses may be expanded in the ordinary course.
3. Executive's Obligations Following Termination of Employment with the Company.
(a) Anti-Pirating of Employees. During the Covenant Period, Executive agrees not to hire, directly or indirectly, or entice or participate in any efforts to entice to leave the Company's employ, any person who was or is a "key employee" (as hereinafter defined) of the Company at any time during the twelve (12) month period immediately preceding the termination date of Executive's employment with the Company. For purposes of this Agreement, "key employee" means an employee who has an annualized rate of base salary equaling or exceeding sixty thousand dollars ($60,000).
(b) Anti-Pirating of Company Projects. During the Covenant Period, Executive agrees not to, directly or indirectly, own, manage, join or control, or participate in the ownership, operation or control of, or be an officer of, director, employee or owner of, or a consultant to, or otherwise authorize the use of his name by, or be connected in any manner with, any business, firm or corporation which engages or attempts to engage, directly or indirectly, in the acquisition, development, construction, operation, management or leasing of any Company Project, other than on behalf of the Company.
(c) Noncompetition. During the Covenant Period, Executive agrees not to, directly or indirectly, own, manage, join or control, or participate in the ownership, operation or control of, or be an officer, director, employee or owner of, or a consultant to, or otherwise authorize the use of his name by, or be connected in any manner with, any business, firm or corporation which at the time or at any time during the Covenant Period is involved in the acquisition, development, construction, operation, management or leasing of any Property within a 200 mile radius of any Company Project that existed at any time during the twelve (12) month period immediately preceding the termination date of Executive's employment with the Company.
(d) Trade Secrets and Confidential Information. Executive hereby agrees that he will hold in a fiduciary capacity for the benefit of the Company, and shall not directly or indirectly use or disclose any Trade Secret (as hereinafter defined), that Executive may have acquired during the term of his employment by the Company for so long as such information remains a Trade Secret. The term "Trade Secret" as used in this Agreement shall mean information including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which:
derives economic value, actual or potential from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and is the subject of reasonable efforts by the Company to maintain its secrecy.
In addition to the foregoing and not in limitation thereof, Executive agrees that during the period of his employment by the Company and the Covenant Period, he will hold in a fiduciary capacity for the benefit of the Company and shall not directly or indirectly use or disclose, any Confidential or Proprietary Information (as hereinafter defined), that Executive may have acquired (whether or not developed or compiled by Executive and whether or not Executive was authorized to have access to such Information) during the term of, in the course of or as a result of his employment by the Company and Ramco. The term "Confidential or Proprietary Information" as used in this Agreement means any secret, confidential or proprietary information of the Company and Ramco not otherwise included in the definition of "Trade Secret" above. The term "Confidential and Proprietary Information" does not include information that has become generally available to the public by the act of one who has the right to disclose such information without violating any right of the Company.
(e) Exceptions. Notwithstanding any provision of paragraph 3(c) to the contrary, Executive shall not be restricted at any time after his termination of employment with the Company from engaging in any activities for which Executive would not be restricted from performing during the term of his employment with the Company as set forth in paragraph 2(b) above.
4. Reasonable and Necessary Restrictions. Executive acknowledges that the restrictions, prohibitions and other provisions hereof, including without limitation the 200-mile radius set forth in paragraph 3(c) and the Covenant Period, are reasonable, fair and equitable in scope, terms and duration, are necessary to protect the legitimate business interests of the Company, and are a material inducement to the Company to enter into the Ramco Transaction. Executive hereby waives, and covenants not to assert in any action or proceeding relating to this Agreement, any claim or defense that there exists an adequate remedy at law for breach of this Agreement.
5. Restrictions In Addition to Employment Agreement. Executive acknowledges that the restrictions, prohibitions and other provisions hereof shall be in addition to and not in
substitution of the restrictions, prohibitions and other provisions of the Employment Agreement, as such agreement shall be amended and supplemented from time to time.
6. Specific Performance. Executive acknowledges that the obligations undertaken by him pursuant to this Agreement are unique and that the Company likely will have no adequate remedy at law if Executive shall fail to perform any of his obligations hereunder, and Executive therefore confirms that the Company's right to specific performance of the terms of this Agreement is essential to protect the rights and interests of the Company. Accordingly, in addition to any other remedies that the Company may have at law or in equity, the Company shall have the right to have all obligations, covenants, agreements and other provisions of this Agreement specifically performed by Executive, and the Company shall have the right to obtain preliminary and permanent injunctive relief to secure specific performance and to prevent a breach or contemplated breach of this Agreement by Executive, and Executive submits to the jurisdiction of the courts of the State of Michigan for this purpose.
7. Operations of Affiliates. Executive agrees that he will refrain from (i) authorizing any Affiliate to perform or (ii) assisting in any manner any Affiliate in performing any activities that would be prohibited by the terms of this Agreement if they were performed by Executive. Notwithstanding anything to the contrary contained in this paragraph 7 (or in any other paragraph of this Agreement), Executive shall not be required by the terms of this Agreement to violate any fiduciary or contractual duty he owes as a director or officer of a corporation, as a partner of a partnership or as a trustee of a trust, which position he holds not in violation of this Agreement or the Employment Agreement.
8. Miscellaneous Provisions.
(a) Binding Effect. Subject to any provisions hereof restricting assignment, all covenants and agreements in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors, assigns, heirs, and personal representatives. None of the parties hereto may assign any of its rights under this Agreement or attempt to have any other person or entity assume any of its obligations hereunder.
(b) Severability. If any clause, provision or section of this Agreement shall be invalid or unenforceable, the invalidity or unenforceability of such clause, provision or section shall not affect the enforceability or validity of any of the remaining clauses, provisions or sections hereof to the extent permitted by applicable law.
(c) Governing Law. This Agreement shall be construed and enforced in accordance with the internal laws of the State of New York, without reference to its rules as to conflicts or choice of laws.
(d) Amendment. This Agreement may not be changed, modified, discharged or amended, except by an instrument signed by all of the parties hereto.
(e) Headings. Paragraph and subparagraph headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.
(f) Pronouns. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or entity may require.
(g) Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.
(h) Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties and supersedes any prior understandings and/or written or oral agreements among them respecting the subject matter herein.
(i) Notices. All notices, requests, demands, consents and
other communications required or permitted to be given pursuant to this
Agreement shall be in writing and delivered by hand, by overnight courier
delivery service or by certified mail, return receipt requested, postage
prepaid. Notices shall be deemed given when actually received, which shall be
deemed to be no later than the next business day if sent by overnight courier or
after five business days if sent by mail. Notice to the Company shall be made
at 27600 Northwestern Highway, Suite 200, Southhold, Michigan 48034; Attn:
Chairman. Notice to Executive shall be made at the address set forth on the
books of the Company.
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement, or caused this Agreement to be duly executed on its behalf, as of the date first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Joel Gershenson
--------------------------------
Name: Joel Gershenson
Title: Treasurer
/s/ Dennis Gershenson
-------------------------------------------
Dennis Gershenson
|
Schedule 1
River's Edge Office Building Saginaw, Michigan Summit Complex (Summit Place, Summit Sterling Heights, Michigan Crossing, Summit North) Sandusky, Ohio Livonia Towne Square Toledo, Ohio Bay Towne Plaza Builders Square (vacant) Park Place Shopping Center North Towne Commons Estate Properties Land Contracts Southfield Properties - GGJ Associates Melvindale Plaza Gershenson-Wittbold Mt. Clemens Nine Mile & Harper Southfield Properties - Plymouth/ Southfield Southfield Properties - Van Born Southfield Properties - Ypsilanti Partnership Interest in Sale/Leaseback Assets Southfield Properties - Southgate Southfield Properties - Westland Partnership Interest in Real Estate Owned in Fee Southfield Properties - Cedar/Jolly Maple & Livernois Plaza G & R Development G & S Realty Company Southfield Properties - Lansing Mart Gershenson-Wittbold Louisville Michigan Mart Associates Southfield, Michigan Waterford, Michigan Livonia, Michigan |
EXHIBIT 10.15
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT (this "AGREEMENT") is entered into as of May 10, 1996 by and between Michael A. Ward ("EXECUTIVE") and Ramco-Gershenson Properties Trust, formerly known as RPS Realty Trust, a Massachusetts business trust (the "TRUST").
R E C I T A L S :
A. On the date hereof, the Company (as defined below) and Ramco-Gershenson, Inc. and its affiliates (collectively "RAMCO") have consummated a transaction (the "RAMCO TRANSACTION") pursuant to which the Company and Ramco have contributed cash and properties to Ramco-Gershenson Properties, L.P., a Delaware limited partnership.
B. It was a condition to the consummation of the Ramco Transaction that the Trust and Executive enter into an agreement restricting the activities of Executive that would eliminate potential conflicts of interest that may arise in the future and would otherwise protect the Company's legitimate business interests.
Accordingly, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein shall have the meanings set forth below:
"AFFILIATE" means (i) any entity directly or indirectly controlling (including without limitation an entity for which Executive serves as an officer, director, employee, consultant or other agent), controlled by, or under common control with Executive, and (ii) each other entity in which Executive, directly or indirectly, owns any controlling interest or of which Executive serves as a general partner.
"AGREEMENT" shall have the meaning set forth in the heading of this Agreement.
"COMPANY" means (i) Ramco-Gershenson Properties Trust, formerly known as RPS Realty Trust, (ii) Ramco-Gershenson, Inc., a Michigan corporation, (iii) any corporation, partnership or other business entity that is, directly or indirectly, controlled by or under common control with Ramco-Gershenson Properties Trust and (iv) their respective successors.
"COMPANY PROJECT" means any properties, development land and development out parcels that the Company owns, operates or manages as of the date of Executive's termination of employment with the Company or that the Company has in any manner taken steps to acquire, develop, construct, operate, manage or lease (including without limitation making market surveys of a site, talking to the owner or his agent concerning the purchase or joint venture of a site, optioning or contracting to buy a site or discussions with the owner or his agent regarding managing or leasing
a property) during the twelve (12) month period immediately preceding Executive's termination of employment with the Company.
"COVENANT PERIOD" means the period commencing on the Effective Date and ending on the later of the following:
(i) the date Executive is no longer an officer or trustee of the Company and
(ii) three (3) years following the Effective Date;
provided, that if at any time during Covenant Period Executive becomes Chairman, Vice Chairman, President or Chief Executive Officer of the Company (or holds any other office in the Company that is vested with powers and duties substantially similar to those powers and duties typically vested by corporations or business trusts in the office of Chairman and President, the Covenant Period shall expire on the later of the following:
(x) one year after the date Executive is no longer an officer or trustee of the Company and
(y) four years following the Effective Date.
"EFFECTIVE DATE" means the date of the closing of the Ramco Transaction.
"EMPLOYMENT AGREEMENT" shall mean the Employment Agreement dated the date hereof between the Trust and Executive.
"EXECUTIVE" shall have the meaning set forth in the heading of this Agreement.
"OPERATING PARTNERSHIP" shall have the meaning set forth in Recital A.
"RAMCO" shall have the meaning set forth in Recital A.
"RAMCO TRANSACTION" shall have the meaning set forth in RecitalEA.
"PROPERTY" means any real property on which shopping center or retail use (or any combination of the foregoing) development has been constructed or is now or hereafter proposed to be constructed or any other type of real property which hereafter the Company may acquire, develop, own, construct, manage or may disclose or authorize any intention, plan or arrangement to acquire, develop, own, construct or manage.
2. Executive's Obligations While Employed by the Company.
(a) Sole Employment. Subject to the provisions of paragraph 2(b) below, Executive agrees to devote substantially his full time during the customary business hours of the Company and give his best efforts to the business of the Company and, during the period of his employment by the Company, Executive shall not engage in any manner, whether as an officer, employee, owner, partner, stockholder, trustee, director, consultant or otherwise, directly or indirectly, in any business other than on behalf of the Company without the prior written approval of the Board of Trustees of the Company, and Executive shall not accept any other employment whatsoever from any other person, firm, corporation or entity.
(b) Exceptions. Notwithstanding the provisions of paragraph 2(a) above and of paragraph 3, Executive may during the term of his employment by the Company and at any time thereafter (i) acquire an interest in any corporation, partnership, venture or other business entity so long as (A) any such interest is a passive investment of Executive, provided such interest does not represent a direct or indirect interest in any Property, (B) such interest does not afford Executive the power to influence in any material fashion the decision making processes of the entity in which such interest is held and (C) Executive is not the sponsor, promoter or similar initiator of such entity, (ii) continue (W) to serve as a general or limited partner of each of the partnerships which own the Properties identified on Schedule 1, attached hereto and incorporated by this reference, as an officer, director and shareholder of each of the corporations identified on such Schedule 1, and as a beneficiary of the estate properties listed on ScheduleE1, (X) to discharge Executive's fiduciary and contractual duties and obligations with respect thereto, even though such limited partnerships and corporations (or any partnership of which any such limited partnership or corporation is a general or limited partner) may directly compete with the Company, (Y) to serve on not more than three (3) Boards of Directors of publicly traded entities and (Z) to serve on the Board of Directors of any charitable institution, and (iii) continue to engage in Executive's existing video arcade and fast food businesses, as those businesses may be expanded in the ordinary course.
3. Executive's Obligations Following Termination of Employment with the Company.
(a) Anti-Pirating of Employees. During the Covenant Period, Executive agrees not to hire, directly or indirectly, or entice or participate in any efforts to entice to leave the Company's employ, any person who was or is a "key employee" (as hereinafter defined) of the Company at any time during the twelve (12) month period immediately preceding the termination date of Executive's employment with the Company. For purposes of this Agreement, "key employee" means an employee who has an annualized rate of base salary equaling or exceeding sixty thousand dollars ($60,000).
(b) Anti-Pirating of Company Projects. During the Covenant Period, Executive agrees not to, directly or indirectly, own, manage, join or control, or participate in the ownership, operation or control of, or be an officer of, director, employee or owner of, or a consultant to, or
otherwise authorize the use of his name by, or be connected in any manner with, any business, firm or corporation which engages or attempts to engage, directly or indirectly, in the acquisition, development, construction, operation, management or leasing of any Company Project, other than on behalf of the Company.
(c) Noncompetition. During the Covenant Period, Executive agrees not to, directly or indirectly, own, manage, join or control, or participate in the ownership, operation or control of, or be an officer, director, employee or owner of, or a consultant to, or otherwise authorize the use of his name by, or be connected in any manner with, any business, firm or corporation which at the time or at any time during the Covenant Period is involved in the acquisition, development, construction, operation, management or leasing of any Property within a 200 mile radius of any Company Project that existed at any time during the twelve (12) month period immediately preceding the termination date of Executive's employment with the Company.
(d) Trade Secrets and Confidential Information. Executive hereby agrees that he will hold in a fiduciary capacity for the benefit of the Company, and shall not directly or indirectly use or disclose any Trade Secret (as hereinafter defined), that Executive may have acquired during the term of his employment by the Company for so long as such information remains a Trade Secret. The term "Trade Secret" as used in this Agreement shall mean information including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which:
derives economic value, actual or potential from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and is the subject of reasonable efforts by the Company to maintain its secrecy.
In addition to the foregoing and not in limitation thereof, Executive agrees that during the period of his employment by the Company and the Covenant Period, he will hold in a fiduciary capacity for the benefit of the Company and shall not directly or indirectly use or disclose, any Confidential or Proprietary Information (as hereinafter defined), that Executive may have acquired (whether or not developed or compiled by Executive and whether or not Executive was authorized to have access to such Information) during the term of, in the course of or as a result of his employment by the Company and Ramco. The term "Confidential or Proprietary Information" as used in this Agreement means any secret, confidential or proprietary information of the Company and Ramco not otherwise included in the definition of "Trade Secret" above. The term "Confidential and Proprietary Information" does not include information that has become generally available to the public by the act of one who has the right to disclose such information without violating any right of the Company.
(e) Exceptions. Notwithstanding any provision of paragraph 3(c) to the contrary, Executive shall not be restricted at any time after his termination of employment with the Company from engaging in any activities for which Executive would not be restricted from performing during the term of his employment with the Company as set forth in paragraph 2(b) above.
4. Reasonable and Necessary Restrictions. Executive acknowledges that the restrictions, prohibitions and other provisions hereof, including without limitation the 200-mile radius set forth in paragraph 3(c) and the Covenant Period, are reasonable, fair and equitable in scope, terms and duration, are necessary to protect the legitimate business interests of the Company, and are a material inducement to the Company to enter into the Ramco Transaction. Executive hereby waives, and covenants not to assert in any action or proceeding relating to this Agreement, any claim or defense that there exists an adequate remedy at law for breach of this Agreement.
5. Restrictions In Addition to Employment Agreement. Executive acknowledges that the restrictions, prohibitions and other provisions hereof shall be in addition to and not in substitution of the restrictions, prohibitions and other provisions of the Employment Agreement, as such agreement shall be amended and supplemented from time to time.
6. Specific Performance. Executive acknowledges that the obligations undertaken by him pursuant to this Agreement are unique and that the Company likely will have no adequate remedy at law if Executive shall fail to perform any of his obligations hereunder, and Executive therefore confirms that the Company's right to specific performance of the terms of this Agreement is essential to protect the rights and interests of the Company. Accordingly, in addition to any other remedies that the Company may have at law or in equity, the Company shall have the right to have all obligations, covenants, agreements and other provisions of this Agreement specifically performed by Executive, and the Company shall have the right to obtain preliminary and permanent injunctive relief to secure specific performance and to prevent a breach or contemplated breach of this Agreement by Executive, and Executive submits to the jurisdiction of the courts of the State of Michigan for this purpose.
7. Operations of Affiliates. Executive agrees that he will refrain from (i) authorizing any Affiliate to perform or (ii) assisting in any manner any Affiliate in performing any activities that would be prohibited by the terms of this Agreement if they were performed by Executive. Notwithstanding anything to the contrary contained in this paragraph 7 (or in any other paragraph of this Agreement), Executive shall not be required by the terms of this Agreement to violate any fiduciary or contractual duty he owes as a director or officer of a corporation, as a partner of a partnership or as a trustee of a trust, which position he holds not in violation of this Agreement or the Employment Agreement.
8. Miscellaneous Provisions.
(a) Binding Effect. Subject to any provisions hereof restricting assignment, all covenants and agreements in this Agreement by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors, assigns, heirs, and personal representatives. None of the parties hereto may assign any of its rights under this Agreement or attempt to have any other person or entity assume any of its obligations hereunder.
(b) Severability. If any clause, provision or section of this Agreement shall be invalid or unenforceable, the invalidity or unenforceability of such clause, provision or section shall not affect the enforceability or validity of any of the remaining clauses, provisions or sections hereof to the extent permitted by applicable law.
(c) Governing Law. This Agreement shall be construed and enforced in accordance with the internal laws of the State of New York, without reference to its rules as to conflicts or choice of laws.
(d) Amendment. This Agreement may not be changed, modified, discharged or amended, except by an instrument signed by all of the parties hereto.
(e) Headings. Paragraph and subparagraph headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.
(f) Pronouns. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or entity may require.
(g) Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.
(h) Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties and supersedes any prior understandings and/or written or oral agreements among them respecting the subject matter herein.
(i) Notices. All notices, requests, demands, consents and other communications required or permitted to be given pursuant to this Agreement shall be in writing and delivered by hand, by overnight courier delivery service or by certified mail, return receipt requested, postage prepaid. Notices shall be deemed given when actually received, which shall be deemed to be no later than the next business day if sent by overnight courier or after five business days if sent by mail. Notice to the Company shall be made at 27600 Northwestern Highway, Suite 200, Southhold, Michigan 48034; Attn: Chairman. Notice to Executive shall be made at the address set forth on the books of the Company.
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement, or caused this Agreement to be duly executed on its behalf, as of the date first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson -------------------------------- Name: Dennis Gershenson Title: Chief Executive Officer /s/ Michael A. Ward ------------------------------------------- Michael A. Ward |
Schedule 1
River's Edge Office Building Saginaw, Michigan
Summit Complex (Summit Place, Summit Sterling Heights, Michigan
Crossing, Summit North) Sandusky, Ohio
Livonia Towne Square Toledo, Ohio
Bay Towne Plaza
Builders Square (vacant)
Park Place Shopping Center
North Towne Commons
Estate Properties
Land Contracts
Southfield Properties - GGJ Associates
Melvindale Plaza
Gershenson-Wittbold Mt. Clemens
Nine Mile & Harper
Southfield Properties - Plymouth/
Southfield
Southfield Properties - Van Born
Southfield Properties - Ypsilanti
Partnership Interest in Sale/Leaseback
Assets
Southfield Properties - Southgate
Southfield Properties - Westland
Partnership Interest in Real Estate Owned
in Fee
Southfield Properties - Cedar/Jolly
Maple & Livernois Plaza
G & R Development
G & S Realty Company
Southfield Properties - Lansing Mart
Gershenson-Wittbold Louisville
Michigan Mart Associates
Southfield, Michigan
Waterford, Michigan
Livonia, Michigan
|
EXHIBIT 10.16
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT (this "AGREEMENT") is entered into as of May 10, 1996 by and between Richard Gershenson ("EXECUTIVE") and Ramco-Gershenson Properties Trust, formerly known as RPS Realty Trust, a Massachusetts business trust (the "TRUST").
R E C I T A L S :
A. On the date hereof, the Company (as defined below) and Ramco-Gershenson, Inc. and its affiliates (collectively "RAMCO") have consummated a transaction (the "RAMCO TRANSACTION") pursuant to which the Company and Ramco have contributed cash and properties to Ramco-Gershenson Properties, L.P., a Delaware limited partnership.
B. It was a condition to the consummation of the Ramco Transaction that the Trust and Executive enter into an agreement restricting the activities of Executive that would eliminate potential conflicts of interest that may arise in the future and would otherwise protect the Company's legitimate business interests.
Accordingly, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein shall have the meanings set forth below:
"AFFILIATE" means (i) any entity directly or indirectly controlling (including without limitation an entity for which Executive serves as an officer, director, employee, consultant or other agent), controlled by, or under common control with Executive, and (ii) each other entity in which Executive, directly or indirectly, owns any controlling interest or of which Executive serves as a general partner.
"AGREEMENT" shall have the meaning set forth in the heading of this Agreement.
"COMPANY" means (i) Ramco-Gershenson Properties Trust, formerly known as RPS Realty Trust, (ii) Ramco-Gershenson, Inc., a Michigan corporation, (iii) any corporation, partnership or other business entity that is, directly or indirectly, controlled by or under common control with Ramco-Gershenson Properties Trust and (iv) their respective successors.
"COMPANY PROJECT" means any properties, development land and development out parcels that the Company owns, operates or manages as of the date of Executive's termination of employment with the Company or that the Company has in any manner taken steps to acquire, develop, construct, operate, manage or lease (including without limitation making market surveys of a site, talking to the owner or his agent concerning the purchase or joint venture of a site, optioning or contracting to buy a site or discussions with the owner or his agent regarding managing or leasing
a property) during the twelve (12) month period immediately preceding Executive's termination of employment with the Company.
"COVENANT PERIOD" means the period commencing on the Effective Date and ending on the later of the following:
(i) the date Executive is no longer an officer or trustee of the Company and
(ii) three (3) years following the Effective Date;
provided, that if at any time during Covenant Period Executive becomes Chairman, Vice Chairman, President or Chief Executive Officer of the Company (or holds any other office in the Company that is vested with powers and duties substantially similar to those powers and duties typically vested by corporations or business trusts in the office of Chairman and President, the Covenant Period shall expire on the later of the following:
(x) one year after the date Executive is no longer an officer or trustee of the Company and
(y) four years following the Effective Date.
"EFFECTIVE DATE" means the date of the closing of the Ramco Transaction.
"EMPLOYMENT AGREEMENT" shall mean the Employment Agreement dated the date hereof between the Trust and Executive.
"EXECUTIVE" shall have the meaning set forth in the heading of this Agreement.
"OPERATING PARTNERSHIP" shall have the meaning set forth in Recital A.
"RAMCO" shall have the meaning set forth in Recital A.
"RAMCO TRANSACTION" shall have the meaning set forth in RecitalEA.
"PROPERTY" means any real property on which shopping center or retail use (or any combination of the foregoing) development has been constructed or is now or hereafter proposed to be constructed or any other type of real property which hereafter the Company may acquire, develop, own, construct, manage or may disclose or authorize any intention, plan or arrangement to acquire, develop, own, construct or manage.
2. Executive's Obligations While Employed by the Company.
(a) Sole Employment. Subject to the provisions of paragraph 2(b) below, Executive agrees to devote substantially his full time during the customary business hours of the Company and give his best efforts to the business of the Company and, during the period of his employment by the Company, Executive shall not engage in any manner, whether as an officer, employee, owner, partner, stockholder, trustee, director, consultant or otherwise, directly or indirectly, in any business other than on behalf of the Company without the prior written approval of the Board of Trustees of the Company, and Executive shall not accept any other employment whatsoever from any other person, firm, corporation or entity.
(b) Exceptions. Notwithstanding the provisions of paragraph 2(a) above and of paragraph 3, Executive may during the term of his employment by the Company and at any time thereafter (i) acquire an interest in any corporation, partnership, venture or other business entity so long as (A) any such interest is a passive investment of Executive, provided such interest does not represent a direct or indirect interest in any Property, (B) such interest does not afford Executive the power to influence in any material fashion the decision making processes of the entity in which such interest is held and (C) Executive is not the sponsor, promoter or similar initiator of such entity, (ii) continue (W) to serve as a general or limited partner of each of the partnerships which own the Properties identified on Schedule 1, attached hereto and incorporated by this reference, as an officer, director and shareholder of each of the corporations identified on such Schedule 1, and as a beneficiary of the estate properties listed on ScheduleE1, (X) to discharge Executive's fiduciary and contractual duties and obligations with respect thereto, even though such limited partnerships and corporations (or any partnership of which any such limited partnership or corporation is a general or limited partner) may directly compete with the Company, (Y) to serve on not more than three (3) Boards of Directors of publicly traded entities and (Z) to serve on the Board of Directors of any charitable institution, and (iii) continue to engage in Executive's existing video arcade and fast food businesses, as those businesses may be expanded in the ordinary course.
3. Executive's Obligations Following Termination of Employment with the Company.
(a) Anti-Pirating of Employees. During the Covenant Period, Executive agrees not to hire, directly or indirectly, or entice or participate in any efforts to entice to leave the Company's employ, any person who was or is a "key employee" (as hereinafter defined) of the Company at any time during the twelve (12) month period immediately preceding the termination date of Executive's employment with the Company. For purposes of this Agreement, "key employee" means an employee who has an annualized rate of base salary equaling or exceeding sixty thousand dollars ($60,000).
(b) Anti-Pirating of Company Projects. During the Covenant Period, Executive agrees not to, directly or indirectly, own, manage, join or control, or participate in the ownership, operation or control of, or be an officer of, director, employee or owner of, or a consultant to, or
otherwise authorize the use of his name by, or be connected in any manner with, any business, firm or corporation which engages or attempts to engage, directly or indirectly, in the acquisition, development, construction, operation, management or leasing of any Company Project, other than on behalf of the Company.
(c) Noncompetition. During the Covenant Period, Executive agrees not to, directly or indirectly, own, manage, join or control, or participate in the ownership, operation or control of, or be an officer, director, employee or owner of, or a consultant to, or otherwise authorize the use of his name by, or be connected in any manner with, any business, firm or corporation which at the time or at any time during the Covenant Period is involved in the acquisition, development, construction, operation, management or leasing of any Property within a 200 mile radius of any Company Project that existed at any time during the twelve (12) month period immediately preceding the termination date of Executive's employment with the Company.
(d) Trade Secrets and Confidential Information. Executive hereby agrees that he will hold in a fiduciary capacity for the benefit of the Company, and shall not directly or indirectly use or disclose any Trade Secret (as hereinafter defined), that Executive may have acquired during the term of his employment by the Company for so long as such information remains a Trade Secret. The term "Trade Secret" as used in this Agreement shall mean information including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which:
derives economic value, actual or potential from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and is the subject of reasonable efforts by the Company to maintain its secrecy.
In addition to the foregoing and not in limitation thereof, Executive agrees that during the period of his employment by the Company and the Covenant Period, he will hold in a fiduciary capacity for the benefit of the Company and shall not directly or indirectly use or disclose, any Confidential or Proprietary Information (as hereinafter defined), that Executive may have acquired (whether or not developed or compiled by Executive and whether or not Executive was authorized to have access to such Information) during the term of, in the course of or as a result of his employment by the Company and Ramco. The term "Confidential or Proprietary Information" as used in this Agreement means any secret, confidential or proprietary information of the Company and Ramco not otherwise included in the definition of "Trade Secret" above. The term "Confidential and Proprietary Information" does not include information that has become generally available to the public by the act of one who has the right to disclose such information without violating any right of the Company.
(e) Exceptions. Notwithstanding any provision of paragraph 3(c) to the contrary, Executive shall not be restricted at any time after his termination of employment with the Company from engaging in any activities for which Executive would not be restricted from performing during the term of his employment with the Company as set forth in paragraph 2(b) above.
4. Reasonable and Necessary Restrictions. Executive acknowledges that the restrictions, prohibitions and other provisions hereof, including without limitation the 200-mile radius set forth in paragraph 3(c) and the Covenant Period, are reasonable, fair and equitable in scope, terms and duration, are necessary to protect the legitimate business interests of the Company, and are a material inducement to the Company to enter into the Ramco Transaction. Executive hereby waives, and covenants not to assert in any action or proceeding relating to this Agreement, any claim or defense that there exists an adequate remedy at law for breach of this Agreement.
5. Restrictions In Addition to Employment Agreement. Executive acknowledges that the restrictions, prohibitions and other provisions hereof shall be in addition to and not in substitution of the restrictions, prohibitions and other provisions of the Employment Agreement, as such agreement shall be amended and supplemented from time to time.
6. Specific Performance. Executive acknowledges that the obligations undertaken by him pursuant to this Agreement are unique and that the Company likely will have no adequate remedy at law if Executive shall fail to perform any of his obligations hereunder, and Executive therefore confirms that the Company's right to specific performance of the terms of this Agreement is essential to protect the rights and interests of the Company. Accordingly, in addition to any other remedies that the Company may have at law or in equity, the Company shall have the right to have all obligations, covenants, agreements and other provisions of this Agreement specifically performed by Executive, and the Company shall have the right to obtain preliminary and permanent injunctive relief to secure specific performance and to prevent a breach or contemplated breach of this Agreement by Executive, and Executive submits to the jurisdiction of the courts of the State of Michigan for this purpose.
7. Operations of Affiliates. Executive agrees that he will refrain from (i) authorizing any Affiliate to perform or (ii) assisting in any manner any Affiliate in performing any activities that would be prohibited by the terms of this Agreement if they were performed by Executive. Notwithstanding anything to the contrary contained in this paragraph 7 (or in any other paragraph of this Agreement), Executive shall not be required by the terms of this Agreement to violate any fiduciary or contractual duty he owes as a director or officer of a corporation, as a partner of a partnership or as a trustee of a trust, which position he holds not in violation of this Agreement or the Employment Agreement.
8. Miscellaneous Provisions.
(a) Binding Effect. Subject to any provisions hereof restricting assignment, all covenants and agreements in this Agreement by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors, assigns, heirs, and personal representatives. None of the parties hereto may assign any of its rights under this Agreement or attempt to have any other person or entity assume any of its obligations hereunder.
(b) Severability. If any clause, provision or section of this Agreement shall be invalid or unenforceable, the invalidity or unenforceability of such clause, provision or section shall not affect the enforceability or validity of any of the remaining clauses, provisions or sections hereof to the extent permitted by applicable law.
(c) Governing Law. This Agreement shall be construed and enforced in accordance with the internal laws of the State of New York, without reference to its rules as to conflicts or choice of laws.
(d) Amendment. This Agreement may not be changed, modified, discharged or amended, except by an instrument signed by all of the parties hereto.
(e) Headings. Paragraph and subparagraph headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.
(f) Pronouns. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or entity may require.
(g) Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.
(h) Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties and supersedes any prior understandings and/or written or oral agreements among them respecting the subject matter herein.
(i) Notices. All notices, requests, demands, consents and other communications required or permitted to be given pursuant to this Agreement shall be in writing and delivered by hand, by overnight courier delivery service or by certified mail, return receipt requested, postage prepaid. Notices shall be deemed given when actually received, which shall be deemed to be no later than the next business day if sent by overnight courier or after five business days if sent by mail. Notice to the Company shall be made at 27600 Northwestern Highway, Suite 200, Southhold, Michigan 48034; Attn: Chairman. Notice to Executive shall be made at the address set forth on the books of the Company.
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement, or caused this Agreement to be duly executed on its behalf, as of the date first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson
-----------------------------
Name: Dennis Gershenson
Title: Chief Executive Officer
/s/ Richard Gershenson
-------------------------------------------
Richard Gershenson
|
Schedule 1
River's Edge Office Building Saginaw, Michigan
Summit Complex (Summit Place, Summit Sterling Heights, Michigan
Crossing, Summit North) Sandusky, Ohio
Livonia Towne Square Toledo, Ohio
Bay Towne Plaza
Builders Square (vacant)
Park Place Shopping Center
North Towne Commons
Estate Properties
Land Contracts
Southfield Properties - GGJ Associates
Melvindale Plaza
Gershenson-Wittbold Mt. Clemens
Nine Mile & Harper
Southfield Properties - Plymouth/
Southfield
Southfield Properties - Van Born
Southfield Properties - Ypsilanti
Partnership Interest in Sale/Leaseback
Assets
Southfield Properties - Southgate
Southfield Properties - Westland
Partnership Interest in Real Estate Owned
in Fee
Southfield Properties - Cedar/Jolly
Maple & Livernois Plaza
G & R Development
G & S Realty Company
Southfield Properties - Lansing Mart
Gershenson-Wittbold Louisville
Michigan Mart Associates
Southfield, Michigan
Waterford, Michigan
Livonia, Michigan
|
EXHIBIT 10.17
NONCOMPETITION AGREEMENT
This NONCOMPETITION AGREEMENT (this "AGREEMENT") is entered into as of May 10, 1996 by and between Bruce Gershenson ("EXECUTIVE") and Ramco-Gershenson Properties Trust, formerly known as RPS Realty Trust, a Massachusetts business trust (the "TRUST").
R E C I T A L S :
A. On the date hereof, the Company (as defined below) and Ramco-Gershenson, Inc. and its affiliates (collectively "RAMCO") have consummated a transaction (the "RAMCO TRANSACTION") pursuant to which the Company and Ramco have contributed cash and properties to Ramco-Gershenson Properties, L.P., a Delaware limited partnership.
B. It was a condition to the consummation of the Ramco Transaction that the Trust and Executive enter into an agreement restricting the activities of Executive that would eliminate potential conflicts of interest that may arise in the future and would otherwise protect the Company's legitimate business interests.
Accordingly, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein shall have the meanings set forth below:
"AFFILIATE" means (i) any entity directly or indirectly controlling (including without limitation an entity for which Executive serves as an officer, director, employee, consultant or other agent), controlled by, or under common control with Executive, and (ii) each other entity in which Executive, directly or indirectly, owns any controlling interest or of which Executive serves as a general partner.
"AGREEMENT" shall have the meaning set forth in the heading of this Agreement.
"COMPANY" means (i) Ramco-Gershenson Properties Trust, formerly known as RPS Realty Trust, (ii) Ramco-Gershenson, Inc., a Michigan corporation, (iii) any corporation, partnership or other business entity that is, directly or indirectly, controlled by or under common control with Ramco-Gershenson Properties Trust and (iv) their respective successors.
"COMPANY PROJECT" means any properties, development land and development out parcels that the Company owns, operates or manages as of the date of Executive's termination of employment with the Company or that the Company has in any manner taken steps to acquire, develop, construct, operate, manage or lease (including without limitation making market surveys of a site, talking to the owner or his agent concerning the purchase or joint venture of a site, optioning or contracting to buy a site or discussions with the owner or his agent regarding managing or leasing
a property) during the twelve (12) month period immediately preceding Executive's termination of employment with the Company.
"COVENANT PERIOD" means the period commencing on the Effective Date and ending on the later of the following:
(i) the date Executive is no longer an officer or trustee of the Company and
(ii) three (3) years following the Effective Date;
provided, that if at any time during Covenant Period Executive becomes Chairman, Vice Chairman, President or Chief Executive Officer of the Company (or holds any other office in the Company that is vested with powers and duties substantially similar to those powers and duties typically vested by corporations or business trusts in the office of Chairman and President, the Covenant Period shall expire on the later of the following:
(x) one year after the date Executive is no longer an officer or trustee of the Company and
(y) four years following the Effective Date.
"EFFECTIVE DATE" means the date of the closing of the Ramco Transaction.
"EMPLOYMENT AGREEMENT" shall mean the Employment Agreement dated the date hereof between the Trust and Executive.
"EXECUTIVE" shall have the meaning set forth in the heading of this Agreement.
"OPERATING PARTNERSHIP" shall have the meaning set forth in Recital A.
"RAMCO" shall have the meaning set forth in Recital A.
"RAMCO TRANSACTION" shall have the meaning set forth in RecitalEA.
"PROPERTY" means any real property on which shopping center or retail use (or any combination of the foregoing) development has been constructed or is now or hereafter proposed to be constructed or any other type of real property which hereafter the Company may acquire, develop, own, construct, manage or may disclose or authorize any intention, plan or arrangement to acquire, develop, own, construct or manage.
2. Executive's Obligations While Employed by the Company.
(a) Sole Employment. Subject to the provisions of paragraph 2(b) below, Executive agrees to devote substantially his full time during the customary business hours of the Company and give his best efforts to the business of the Company and, during the period of his employment by the Company, Executive shall not engage in any manner, whether as an officer, employee, owner, partner, stockholder, trustee, director, consultant or otherwise, directly or indirectly, in any business other than on behalf of the Company without the prior written approval of the Board of Trustees of the Company, and Executive shall not accept any other employment whatsoever from any other person, firm, corporation or entity.
(b) Exceptions. Notwithstanding the provisions of paragraph 2(a) above and of paragraph 3, Executive may during the term of his employment by the Company and at any time thereafter (i) acquire an interest in any corporation, partnership, venture or other business entity so long as (A) any such interest is a passive investment of Executive, provided such interest does not represent a direct or indirect interest in any Property, (B) such interest does not afford Executive the power to influence in any material fashion the decision making processes of the entity in which such interest is held and (C) Executive is not the sponsor, promoter or similar initiator of such entity, (ii) continue (W) to serve as a general or limited partner of each of the partnerships which own the Properties identified on Schedule 1, attached hereto and incorporated by this reference, as an officer, director and shareholder of each of the corporations identified on such Schedule 1, and as a beneficiary of the estate properties listed on ScheduleE1, (X) to discharge Executive's fiduciary and contractual duties and obligations with respect thereto, even though such limited partnerships and corporations (or any partnership of which any such limited partnership or corporation is a general or limited partner) may directly compete with the Company, (Y) to serve on not more than three (3) Boards of Directors of publicly traded entities and (Z) to serve on the Board of Directors of any charitable institution, and (iii) continue to engage in Executive's existing video arcade and fast food businesses, as those businesses may be expanded in the ordinary course.
3. Executive's Obligations Following Termination of Employment with the Company.
(a) Anti-Pirating of Employees. During the Covenant Period, Executive agrees not to hire, directly or indirectly, or entice or participate in any efforts to entice to leave the Company's employ, any person who was or is a "key employee" (as hereinafter defined) of the Company at any time during the twelve (12) month period immediately preceding the termination date of Executive's employment with the Company. For purposes of this Agreement, "key employee" means an employee who has an annualized rate of base salary equaling or exceeding sixty thousand dollars ($60,000).
(b) Anti-Pirating of Company Projects. During the Covenant Period, Executive agrees not to, directly or indirectly, own, manage, join or control, or participate in the ownership, operation or control of, or be an officer of, director, employee or owner of, or a consultant to, or
otherwise authorize the use of his name by, or be connected in any manner with, any business, firm or corporation which engages or attempts to engage, directly or indirectly, in the acquisition, development, construction, operation, management or leasing of any Company Project, other than on behalf of the Company.
(c) Noncompetition. During the Covenant Period, Executive agrees not to, directly or indirectly, own, manage, join or control, or participate in the ownership, operation or control of, or be an officer, director, employee or owner of, or a consultant to, or otherwise authorize the use of his name by, or be connected in any manner with, any business, firm or corporation which at the time or at any time during the Covenant Period is involved in the acquisition, development, construction, operation, management or leasing of any Property within a 200 mile radius of any Company Project that existed at any time during the twelve (12) month period immediately preceding the termination date of Executive's employment with the Company.
(d) Trade Secrets and Confidential Information. Executive hereby agrees that he will hold in a fiduciary capacity for the benefit of the Company, and shall not directly or indirectly use or disclose any Trade Secret (as hereinafter defined), that Executive may have acquired during the term of his employment by the Company for so long as such information remains a Trade Secret. The term "Trade Secret" as used in this Agreement shall mean information including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which:
derives economic value, actual or potential from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and is the subject of reasonable efforts by the Company to maintain its secrecy.
In addition to the foregoing and not in limitation thereof, Executive agrees that during the period of his employment by the Company and the Covenant Period, he will hold in a fiduciary capacity for the benefit of the Company and shall not directly or indirectly use or disclose, any Confidential or Proprietary Information (as hereinafter defined), that Executive may have acquired (whether or not developed or compiled by Executive and whether or not Executive was authorized to have access to such Information) during the term of, in the course of or as a result of his employment by the Company and Ramco. The term "Confidential or Proprietary Information" as used in this Agreement means any secret, confidential or proprietary information of the Company and Ramco not otherwise included in the definition of "Trade Secret" above. The term "Confidential and Proprietary Information" does not include information that has become generally available to the public by the act of one who has the right to disclose such information without violating any right of the Company.
(e) Exceptions. Notwithstanding any provision of paragraph 3(c) to the contrary, Executive shall not be restricted at any time after his termination of employment with the Company from engaging in any activities for which Executive would not be restricted from performing during the term of his employment with the Company as set forth in paragraph 2(b) above.
4. Reasonable and Necessary Restrictions. Executive acknowledges that the restrictions, prohibitions and other provisions hereof, including without limitation the 200-mile radius set forth in paragraph 3(c) and the Covenant Period, are reasonable, fair and equitable in scope, terms and duration, are necessary to protect the legitimate business interests of the Company, and are a material inducement to the Company to enter into the Ramco Transaction. Executive hereby waives, and covenants not to assert in any action or proceeding relating to this Agreement, any claim or defense that there exists an adequate remedy at law for breach of this Agreement.
5. Restrictions In Addition to Employment Agreement. Executive acknowledges that the restrictions, prohibitions and other provisions hereof shall be in addition to and not in substitution of the restrictions, prohibitions and other provisions of the Employment Agreement, as such agreement shall be amended and supplemented from time to time.
6. Specific Performance. Executive acknowledges that the obligations undertaken by him pursuant to this Agreement are unique and that the Company likely will have no adequate remedy at law if Executive shall fail to perform any of his obligations hereunder, and Executive therefore confirms that the Company's right to specific performance of the terms of this Agreement is essential to protect the rights and interests of the Company. Accordingly, in addition to any other remedies that the Company may have at law or in equity, the Company shall have the right to have all obligations, covenants, agreements and other provisions of this Agreement specifically performed by Executive, and the Company shall have the right to obtain preliminary and permanent injunctive relief to secure specific performance and to prevent a breach or contemplated breach of this Agreement by Executive, and Executive submits to the jurisdiction of the courts of the State of Michigan for this purpose.
7. Operations of Affiliates. Executive agrees that he will refrain from (i) authorizing any Affiliate to perform or (ii) assisting in any manner any Affiliate in performing any activities that would be prohibited by the terms of this Agreement if they were performed by Executive. Notwithstanding anything to the contrary contained in this paragraph 7 (or in any other paragraph of this Agreement), Executive shall not be required by the terms of this Agreement to violate any fiduciary or contractual duty he owes as a director or officer of a corporation, as a partner of a partnership or as a trustee of a trust, which position he holds not in violation of this Agreement or the Employment Agreement.
8. Miscellaneous Provisions.
(a) Binding Effect. Subject to any provisions hereof restricting assignment, all covenants and agreements in this Agreement by or on behalf of any of the parties hereto shall bind
and inure to the benefit of the respective successors, assigns, heirs, and personal representatives. None of the parties hereto may assign any of its rights under this Agreement or attempt to have any other person or entity assume any of its obligations hereunder.
(b) Severability. If any clause, provision or section of this Agreement shall be invalid or unenforceable, the invalidity or unenforceability of such clause, provision or section shall not affect the enforceability or validity of any of the remaining clauses, provisions or sections hereof to the extent permitted by applicable law.
(c) Governing Law. This Agreement shall be construed and enforced in accordance with the internal laws of the State of New York, without reference to its rules as to conflicts or choice of laws.
(d) Amendment. This Agreement may not be changed, modified, discharged or amended, except by an instrument signed by all of the parties hereto.
(e) Headings. Paragraph and subparagraph headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.
(f) Pronouns. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or entity may require.
(g) Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.
(h) Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties and supersedes any prior understandings and/or written or oral agreements among them respecting the subject matter herein.
(i) Notices. All notices, requests, demands, consents and other communications required or permitted to be given pursuant to this Agreement shall be in writing and delivered by hand, by overnight courier delivery service or by certified mail, return receipt requested, postage prepaid. Notices shall be deemed given when actually received, which shall be deemed to be no later than the next business day if sent by overnight courier or after five business days if sent by mail. Notice to the Company shall be made at 27600 Northwestern Highway, Suite 200, Southhold, Michigan 48034; Attn: Chairman. Notice to Executive shall be made at the address set forth on the books of the Company.
IN WITNESS WHEREOF, each of the undersigned has executed this Agreement, or caused this Agreement to be duly executed on its behalf, as of the date first set forth above.
RAMCO-GERSHENSON PROPERTIES TRUST
By: /s/ Dennis Gershenson ----------------------------- Name: Dennis Gershenson Title: Chief Executive Officer /s/ Bruce Gershenson ------------------------------------------- Bruce Gershenson |
Schedule 1
River's Edge Office Building Saginaw, Michigan
Summit Complex (Summit Place, Summit Sterling Heights, Michigan
Crossing, Summit North) Sandusky, Ohio
Livonia Towne Square Toledo, Ohio
Bay Towne Plaza
Builders Square (vacant)
Park Place Shopping Center
North Towne Commons
Estate Properties
Land Contracts
Southfield Properties - GGJ Associates
Melvindale Plaza
Gershenson-Wittbold Mt. Clemens
Nine Mile & Harper
Southfield Properties - Plymouth/
Southfield
Southfield Properties - Van Born
Southfield Properties - Ypsilanti
Partnership Interest in Sale/Leaseback
Assets
Southfield Properties - Southgate
Southfield Properties - Westland
Partnership Interest in Real Estate Owned
in Fee
Southfield Properties - Cedar/Jolly
Maple & Livernois Plaza
G & R Development
G & S Realty Company
Southfield Properties - Lansing Mart
Gershenson-Wittbold Louisville
Michigan Mart Associates
Southfield, Michigan
Waterford, Michigan
Livonia, Michigan
|
EXHIBIT 10.18
RAMCO-GERSHENSON, INC.
27600 Northwestern Hwy., Suite 200
Southfield, Michigan 48034
April 15, 1996
Mr. Richard Smith
10538 Wellington Boulevard
Powell, Ohio 43065
Dear Richard:
This letter states our agreement with respect to your employment with Ramco-Gershenson, Inc. (the "Company").
1. Your Employment Duties and Responsibilities.
(a) During the "Term" (as defined in paragraph 2 below), you will be employed by the Company as its Chief Financial Officer and will devote substantially all of your full working time and attention, as well as your best efforts, to such position. You will report to the President and Chief Executive Officer of the Company and will have such authority and responsibilities and perform such duties for the Company as may from time to time be established by the Board of Directors of the Company.
(b) It is currently contemplated that, upon consummation of a series of transactions, Ramco-Gershenson Properties L.P., a Delaware limited partnership which will be controlled by Ramco-Gershenson Properties Trust, a Maryland business trust (the "Trust"), will acquire the Company (the "Acquisition"). You hereby consent in such event to the assignment by the Company of this Agreement to the Trust, and agree that, from and after consummation of the Acquisition, (i) all rights and obligations of the Company under this Agreement will be vested in the Trust and (ii) all references in this Agreement to the "Company" will be deemed references to the "Trust".
2. Term. The term of your employment under this Agreement (the "Term") will begin on the date you will commence your employment with Company, which date, subject to the mutual agreement of the parties, is expected to occur approximately May 15, 1996 and will continue, subject to the termination provisions set forth in paragraph 5 below, until the third anniversary of that date.
Mr. Richard Smith
April 15, 1996
3. Compensation.
(a) During each year of the Term, you will receive the following compensation, payable in accordance with the Company's standard payroll procedures:
(i) For the portion of the Term ending December 31, 1996, you will receive a base salary at the annual rate of $150,000, plus a bonus of $25,000 prorated for the number of weeks during the Term ending on or prior to December 31, 1996.
(ii) For subsequent calendar years of the Company, or portions thereof, during the Term, you will receive a base salary and bonus as will be determined to be appropriate from time to time by the Company's Board of Directors, in its sole discretion; provided that in no event will your base salary be less than $150,000 on an annualized basis nor will your base salary plus bonus for the 1997 calendar year, or for any subsequent year, be less than $175,000 on an annualized basis.
(b) At the time the Acquisition is consummated, and simultaneously with the closing thereof (the "Grant Date"), you will be granted options, pursuant to a stock option agreement from the Trust, to purchase 25,000 shares of the Trust (the "Options"). The stock option agreement will provide that the Options will vest, subject to paragraph 6(c) below, in two equal installments of 8,333 shares on the first and second anniversaries of the Grant Date and in a single installment of 8,334 shares on the third anniversary of the Grant Date. The Options will be exercisable at the closing price of Trust shares on the New York Stock Exchange on the date of consummation of the Acquisition, and except as otherwise specifically described in this Agreement, the Options will be subject to the same general terms and conditions as other options granted by the Trust.
4. Fringe Benefits.
(a) In addition to your other compensation, during the Term, you will be
entitled to receive from the Company the same fringe benefits as are generally
made available from time to time to other executives of the Company; except
(i) you will be entitled to three weeks of vacation for each 12-month period of
the Term and (ii) the Company will reimburse you, until you become eligible
for the Company's medical and hospitalization coverage, for the cost to you of
continuing to purchase your current medical and hospitalization insurance
through your current employer pursuant to the Consolidated Omnibus Budget
Reconciliation Act ("COBRA").
Mr. Richard Smith
April 15, 1996
(b) The Company also agrees to pay and/or reimburse you for those moving and living expenses in connection with your relocation to the Metropolitan Detroit area as will be mutually agreeable to you and the Company, including the following:
(i) reasonable expenses incurred in moving your home furnishings from Columbus, Ohio to the Metropolitan Detroit area;
(ii) reasonable commuting costs between your home in Columbus and the Metropolitan Detroit area prior to your purchase of a new home;
(iii) reasonable apartment rental costs (to the extent necessary) in the Metropolitan Detroit area for a period not to exceed six months from the commencement of your employment under this Agreement; and
(iv) reasonable and customary realtor fees and closing costs incurred by you in connection with the sale of your current house in Ohio plus any loss incurred by you in connection with the sale of your current house (such loss to be measured by the excess, if any, of (a) the sum of your original acquisition cost of the house over (b) the net sales proceeds you receive for the house), but not to exceed, in the aggregate, $30,000.
(c) You will be responsible for accounting for and payment of taxes on benefits provided to you by the Company and you will keep such records regarding usage of these benefits as the Company requires.
5. Termination.
(a) Death. This Agreement will terminate immediately upon your death.
(b) Disability. This Agreement will terminate immediately upon your Disability. "Disability" means your inability, whether mental or physical, to perform the normal duties of your position for six consecutive months. If the Company and you are unable to agree as to whether you are Disabled, the question will be decided by a physician mutually agreed upon by each of us and paid for by the Company, whose decision will be conclusive and binding. If you and the Company are unable to agree on a physician, you and the Company will each choose one physician who will mutually choose a third physician, whose decision will be conclusive and binding.
Mr. Richard Smith
April 15, 1996
(c) With Cause. The Company will have the right, upon written notice to you, to terminate your employment under this Agreement for Cause. Such termination will be effective immediately upon such written notice. For purposes of this Agreement, termination of your employment for "Cause" means termination for your commission of a felony or crime involving moral turpitude; embezzlement, misappropriation of Company property or other acts of dishonesty or fraud; material breach of this Agreement or any other agreement with the Company (or its successors or assigns) to which you are a party which is not cured within 10 days of your receipt of written notice of such breach; or repeated failure, after written notice, to follow reasonable directions from the President and Chief Executive Officer and/or the Board of Directors of the Company.
(d) Change in Control. If your employment is terminated by the Company
prior to expiration of the Term and within twelve months after a Change in
Control (as defined below), the provisions of paragraph 6(c) below will apply.
The term "Change in Control" means the first to occur of the following events:
(i) any person or group of commonly controlled persons, other than the existing
shareholders of the Company as of the date of this Agreement (the "Ramco
Principals") or their affiliates, owns or controls, directly or indirectly,
more than twenty-five percent (25%) of the voting control or value of the
capital stock of the Company; or (B) the shareholders of the Company approve an
agreement to merge or consolidate with another corporation or other entity,
other than a corporation or entity controlled by the Ramco Principals or their
affiliates, resulting (whether separately or in connection with a series of
transactions) in a change in ownership of twenty-five percent (25%) or more of
the voting control or value of the capital stock of the Company, or an
agreement to sell or otherwise dispose of all or substantially all of the
Company's assets (including a plan of liquidation or dissolution), or otherwise
approve a fundamental change in the nature of the Company's business.
Notwithstanding the foregoing, the Acquisition will not constitute a Change in
Control.
6. Termination Benefits.
(a) The amounts described in this paragraph 6 will be in lieu of any termination or severance payments required by the Company's policy or applicable law (other than continued medical or disability coverage to which you or your family are entitled under the Company's then existing employment policies covering Company executives or then applicable law), and will constitute your sole and exclusive rights and remedies with respect to the termination of your employment with the Company. All payments under this paragraph 6 will be payable in accordance with the Company's normal payroll procedures, and the Company may withhold from any payments made under this paragraph 6 all federal, state, city or other taxes to the extent such taxes are required to be withheld by applicable law.
Mr. Richard Smith
April 15, 1996
(b) If your employment is terminated because of your death or Disability or by the Company for Cause, you will receive the pro-rata portion of your salary under paragraph 3(a) above through the date of termination, and no other payment.
(c) If your employment is terminated by the Company prior to expiration of the Term and within twelve months after a Change in Control, (i) you will receive the pro-rata portion of your salary under paragraph 3(a) above through the date of termination, (ii) you will also receive an additional amount equal to one year's salary at the rate in effect on the date of termination, payable in accordance with the Company's standard payroll procedures, (iii) the Company will pay you an amount equal to the most recent bonus paid you, under paragraph 3(a) above, prior to your termination, (iv) any Options or other plan benefits, if any, remaining unvested on the date of your termination will immediately vest, and (v) you will be entitled to a continuation of your fringe benefits under paragraph 4(a) above for one year following your termination, and no other payment.
7. Confidentiality/Nonsolicitation.
(a) During your employment with the Company and thereafter, you will not disclose or make accessible to any person or entity or use in any way for your own personal gain or to the Company's detriment any confidential information relating to the business of the Company or its affiliates. Upon termination of your employment with the Company for any reason, you will immediately return to the Company all confidential materials over which you exercise any control.
(b) You will not at any time during your employment with the Company, and for a period of one year after the termination of such employment for any reason, directly or indirectly, induce or solicit any employee of the Company to leave the employ of, any independent contractor to terminate any independent contractor relationship with, or any customer, tenant, lender or other party which transacts business with the Company to adversely change any relationship with, the Company.
(c) Paragraphs 7(a) and (b) above are intended to protect confidential information of the Company and its affiliates, and relate to matters which are of a special and unique character, and their violation would cause irreparable injury to the Company, the amount of which will be extremely difficult, if not impossible, to determine and cannot be adequately compensated by monetary damages alone. Therefore, if you breach or threaten to breach either of those paragraphs, in addition to any other remedies which may be available to the Company under this Agreement or at law or equity, the Company may obtain an injunction, restraining order, or other equitable relief against you and such other persons and entities as are appropriate.
Mr. Richard Smith
April 15, 1996
8. Continuation of Employment Beyond Term. There is not, nor will there be, unless in writing signed by both of us, any express or implied agreement as to your continued employment with the Company after the Term. Any continued employment after the Term will be employment at will and your compensation, benefits and termination benefits, if any, will be determined by the Board of Directors of the Company in its sole discretion.
9. Miscellaneous.
(a) This Agreement is the complete agreement between us, supersedes any prior agreements between us and may be modified only by written instrument executed by both of us.
(b) This Agreement will be governed by and construed in accordance with the laws of the State of Michigan.
(c) The provisions of this Agreement will be deemed severable, and if any part of any provision is held illegal, void or invalid under applicable law, such provision will be changed to the extent reasonably necessary to make the provision, as so changed, legal, valid and binding. If any provision of this Agreement is held illegal, void or invalid in its entirety, the remaining provisions of this Agreement will not in any way be affected or impaired but will remain binding in accordance with their terms.
(d) This Agreement will be binding upon and will inure to the benefit of the Company and its successors and assigns (including the Trust) but is personal to you and cannot be sold, assigned or pledged by you without the Company's written consent.
(e) We will give notices under this Agreement to you in writing either by personal delivery or certified or registered mail at your address, as listed on our records at the time of the notice, and you will give notices to us in writing in care of the Company's President and Chief Executive Officer. Any such notice will be deemed given when delivered or mailed in accordance with the preceding sentence.
(f) You represent and warrant that you have the right to enter into and perform your obligations under this Agreement and that you are not currently and will not during the Term become a party to or bound by any agreement or understanding, written or otherwise, which would in any way restrict or conflict with your performance under this Agreement.
(g) The failure of either party to enforce any provision or provisions of this Agreement will not in any way be construed as a waiver of any such provision or provisions as to any future violations thereof, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. The rights granted the parties herein are cumulative and the
Mr. Richard Smith
April 15, 1996
waiver of any single remedy will not constitute a waiver of such party's right to assert all other legal remedies available to it under the circumstances.
If this Agreement correctly expresses our mutual understanding, please sign and date the enclosed copy and return it to us.
Very truly yours,
RAMCO-GERSHENSON, INC.
By: /s/ Dennis Gershenson
-----------------------------
Dennis Gershenson
Its: President
-----------------
|
The terms of this Agreement
are accepted and agreed to
on April 30, 1996:
/s/ Richard Smith
- ----------------------
Richard Smith
|
| ARTICLE 5 |
| MULTIPLIER: 1,000 |
| PERIOD TYPE | 6 MOS |
| FISCAL YEAR END | DEC 31 1996 |
| PERIOD START | JAN 01 1996 |
| PERIOD END | JUN 30 1996 |
| CASH | 3,024 |
| SECURITIES | 0 |
| RECEIVABLES | 2,076 |
| ALLOWANCES | 147 |
| INVENTORY | 0 |
| CURRENT ASSETS | 0 |
| PP&E | 287,788 |
| DEPRECIATION | 3,917 |
| TOTAL ASSETS | 301,585 |
| CURRENT LIABILITIES | 10,487 |
| BONDS | 114,530 |
| PREFERRED MANDATORY | 0 |
| PREFERRED | 0 |
| COMMON | 0 |
| OTHER SE | 121,570 |
| TOTAL LIABILITY AND EQUITY | 301,585 |
| SALES | 0 |
| TOTAL REVENUES | 13,812 |
| CGS | 0 |
| TOTAL COSTS | 4,207 |
| OTHER EXPENSES | 11,685 |
| LOSS PROVISION | 147 |
| INTEREST EXPENSE | 1,740 |
| INCOME PRETAX | (3,820) |
| INCOME TAX | 0 |
| INCOME CONTINUING | 0 |
| DISCONTINUED | 0 |
| EXTRAORDINARY | 0 |
| CHANGES | 0 |
| NET INCOME | (4,359) |
| EPS PRIMARY | (.61) |
| EPS DILUTED | (.61) |