Exhibit 10.2
AMENDED AND RESTATED
EMPLOYMENT AND CONSULTING AGREEMENT
This Employment and Consulting Agreement (the "Agreement"), made
January 31, 2005 as of January 1, 2004, by and between Thomas Viertel, residing
at 333 West 56th Street, New York, New York 10019 ("Executive") and PRESIDENTIAL
REALTY CORPORATION, a Delaware corporation having offices at 180 South Broadway,
White Plains, New York 10605 (the "Company");
W I T N E S S E T H:
WHEREAS, Company is desirous of employing Executive as its Executive
Vice President and Chief Financial Officer ; and
WHEREAS, Executive desires to render such services to Company.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein set forth, the parties hereto agree as follows:
1. Employment. Company hereby employs Executive as its Executive Vice
President and Chief Financial Officer and Executive hereby accepts such
employment, upon the terms and conditions hereinafter set forth.
2. Duties.
(a) In his capacity as Executive Vice President and Chief Financial
Officer of Company during the Employment Term, the Executive shall perform for
Company the executive, administrative and technical duties customarily
associated with such positions, as well as such other duties reasonably
consistent therewith as may be reasonably assigned to Executive from time to
time by the President or the Board of Directors of Company; provided, however,
that the duties assigned shall be of a character and dignity appropriate to a
senior executive of a corporation and consistent with Executive's experience,
education and background.
(b) Except as otherwise set forth in this paragraph, during the
Employment Term the (i) Executive shall devote his full time and efforts during
normal business days and hours to the performance of this Agreement; and (ii)
Executive shall not engage in the real estate business or in any other business
which conflicts with or competes in any material way with the business of
Company. Notwithstanding the foregoing, (x) Executive may devote reasonable time
and efforts during normal business days and hours to the business of Scorpio
Entertainment, Inc. and Scorpio Ventures, Inc. (collectively "Scorpio") pursuant
to the Option/Shareholders Agreement dated November 14, 1991 among Employer,
Scorpio, Steven Baruch, Thomas Viertel and Jeffrey F. Joseph, as modified by
certain agreements dated as of August 1, 1996 between such parties (the "Option
Agreement") and the Employment Agreement between Executive and Scorpio executed
pursuant to the Option Agreement and (y) Executive may devote such time and
efforts to winding up the business of Ivy Properties Ltd. and its affiliates
(collectively, "Ivy") as Executive deems reasonably necessary, so long as the
devotion of such time and effort does not conflict or interfere with Executive's
performance of his duties as Executive Vice President of the Company and in fact
Executive does diligently perform his duties as Executive Vice President of the
Company to the satisfaction of the Board of Directors of Company. During the
Term of this Agreement, Employer will permit Executive, at no cost to Executive,
to utilize his office space to carry on the business of Scorpio to the extent
permitted by this paragraph (b), provided, however, that Executive and/or
Scorpio will pay, or reimburse Employer for, the direct costs for duplicating,
telecopying, telephone and other business expenses used by Scorpio in a manner
reasonably satisfactory to Employer.
(c) During the Consulting Term, Executive will be engaged by the Company
as a consultant to render to the Company such consulting services as may be
reasonably assigned to him from time to time by the Board of Directors of the
Company, or by the Executive Committee of the Company, provided that such
services are of a type, dignity and nature appropriate to the former Executive
Vice President and Chief Financial Officer of the Company and further provided
that: (i) such consulting services shall be required to be rendered by him only
in White Plains, New York or such other location in the United States designated
by Executive; (ii) Executive's inability to act as such consultant by reason of
illness, disability or lack of capacity shall not be deemed a breach of this
Agreement; and (iii) such services shall not be detrimental or injurious to
Executive's health. It is further agreed that such services shall not require
more than sixty (60) hours service during any month; that Executive's
unavailability at any particular time shall not constitute a breach of this
Agreement; such services may be rendered by telephone, mail or other means of
communication; and that Executive's failure to render such services because of
his absence from White Plains, New York or such other location in the United
States designated by Executive shall not be deemed a breach of this Agreement.
3. Term.
(a) The employment term ("Employment Term") of this Agreement shall
commence on the date hereof and shall continue until the earlier of (i) three
years after notice from Company to Executive terminating the Employment Term,
(ii) the Company ceasing to do business as a result of it having been finally
declared bankrupt or insolvent by a court of competent jurisdiction
("Bankruptcy"), (iii) December 31, 2011, unless terminated earlier in accordance
with this Agreement. The consulting term ("Consulting Term") of this Agreement
shall be the three-year period commencing on the termination of the Employment
Term for any reason other than for cause, Executive's voluntary resignation
pursuant to Section 11(e), Executive's death, Executive's Permanent Disability
or the Company's Bankruptcy. The Consulting Term shall terminate in the event of
Executive's discharge for cause, voluntary resignation, death or Permanent
Disability, or the Company's Bankruptcy The term ("Term") of this Agreement
shall be for the full Employment Term and Consulting Term.
(b) This Agreement may be terminated at any time by Company for
"cause," as defined herein. For the purpose of this Agreement, termination of
Executive's employment or engagement shall be deemed to have been for "cause"
only if termination of his employment or engagement, as the case may be, shall
have been the result of (i) the conviction of Executive of any crime
constituting a felony or any other crime involving moral turpitude, (ii)
Executive's willful refusal to follow a reasonable direction of the Board of
Directors of Company after written notice that such continued refusal shall
result in termination of his employment or engagement as a consultant, for
cause; (iii) Executive's failure to fulfill his employment duties hereunder as
is required by Section 2(b) above after written notice that such continued
failure shall result in termination of his employment for cause; or (iv)
Executive's failure to fulfill his consulting duties hereunder as is required by
and subject to the provisions set forth in Section 2(c) above after written
notice that such continued failure shall result in termination of his consulting
services for cause.
(c) This Agreement may also be terminated by Company as set forth in
Section 11 below.
4. Compensation and Fees. A. During the Employment Term, the Company
shall pay to Executive in consideration of the services to be rendered hereunder
compensation in the form of a salary:
(a) for the period beginning on the date hereof and ending on December
31, 2004, at the annual rate of Two Hundred One Thousand Four Hundred Thirty and
80/100 ($201,430.80) Dollars; and
(b) for the calendar year beginning on January 1, 2005, and for every
calendar year thereafter. commencing during the Employment Term of this
Agreement, in an amount equal to the salary paid for the previous calendar year
times the lesser of (i) 1.05 and (ii) the Cost of Living Adjustment Factor (as
hereinafter defined);
The salary for all such periods shall be prorated if any partial
calendar year is involved and shall be paid less appropriate deductions, if any,
for federal, state and city income taxes, FICA contributions, N.Y.S. disability
and any other deductions required by law.
The Cost of Living Adjustment Factor as it is applied in calculating
compensation payable to Executive for any period referred to above (and
retirement compensation payable to Executive for any period described in Section
12 below) shall be the sum of (x) one (1) plus (y) a fraction (A) which has as
its numerator the amount, if any, by which the Revised Consumer Price Index for
Urban Wage Earners and Clerical Workers for the New York-Northern New Jersey
area (1982-84=100), published by the U.S. Department of Labor Statistics (the
"Index") for the last calendar month preceding the commencement of such period
(which will be December in each case of annual salary described in this Section
4) (the "Increase Index Month") exceeds the Index for the calendar month
occurring one year prior to the Increase Index Month (the "Base Index Month"),
and (B) which has as its denominator the Index for the Base Index Month.
In the event that the Index is converted to a different standard
reference base or otherwise revised, the determination of increased compensation
under this Section 4 and/or retirement compensation under Section 12 shall be
made with the use of such conversion factor, formula or table for converting the
Index as may be published by the Bureau of Labor Statistics or, if said Bureau
shall not publish the same, then with the use of such conversion factor, formula
or table as may be published by Prentice-Hall, Inc., or any other nationally
recognized publisher of similar statistical information. If the Index ceases to
be published, and there is no successor thereto, such other index as Executive
and Company shall agree upon in writing shall be substituted for the Index. If
Executive and Company are unable to agree as to such substituted index, such
substituted index shall be that determined by arbitration in accordance with the
procedures of the American Arbitration Association.
In the event that the Index is not available for any month provided for
above, the next available Index shall be used instead, and if the next available
index is available following a payment for which an adjustment should have been,
then a retroactive adjustment shall also be made.
(c) Executive's compensation shall be payable in equal installments in
arrears, in the same frequency as other senior officers of Company are paid, but
in any event not less frequent than twenty-six (26) bi-weekly installments.
B. As compensation for Executive's services during the Consulting Term,
the Company shall pay consulting fees at the annual rate of 50% of the salary
which was in effect under Section 4A(b) on the day preceding the commencement of
the Consulting Term plus the Cost of Living Adjustment Factor as provided in
Section 4A(b), less any deductions required by law. Such fees shall be payable
in equal installments in arrears, in the same frequency as senior officers of
the Company are paid, but in any event not less frequently than twenty-six (26)
bi-weekly installments. Such fees for the second and third years of the
Consulting Term shall likewise be adjusted for the Cost of Living Adjustment
Factor as provided in Section 4A(b).
5. Indemnification. The Indemnification Agreements previously executed
by Executive and Company shall remain in full force and effect during the Term
of this Agreement including the Employment Term and the Consulting Term.
6. Vacations. Executive shall be entitled during the Employment Term of
this Agreement to four weeks vacation annually at full compensation.
7. Fringe Benefits. (a) During the Employment Term of this Agreement,
Executive shall be entitled to the extent permitted by applicable law or the
applicable plans and agreements providing the benefits, at Company's expense, to
participate in (a) the following benefit programs which Company now maintains
for its employees: (i) its Defined Benefit Pension Plan, (ii) its Section 125
cafeteria plan, (iii) its Section 401(k) plan if any, (iv) its health insurance
plan for employees only, (v) its disability insurance plan, and (vi) its group
life insurance plan; and (b) all benefit programs that Company hereafter
establishes and makes available to either employees in general or to other
senior executive management (without intending to provide duplicate coverage to
Executive if Company makes such available to both employees in general and to
senior executive management).
(b) During the Consulting Term Executive shall be entitled to
the extent permitted by applicable law or the applicable plans and agreements
providing the benefits, at Company's expense, to participate in the following
benefit programs which Company now maintains to the extent available for its
consultants: (i) its health insurance plans; (ii) its disability insurance
plans; and (iii) its group life insurance plans.
(c) If obtainable during the Term and at Executive's option
and, if exercised, at Executive's sole cost and expense, Company shall include
Executive's spouse and children under the health insurance plan maintained by
Company for Executive.
(d) In addition, during the Employment Term of this Agreement,
(i) Company shall also pay for the premiums on Executive's existing life
insurance policy up to a maximum of $12,075 per annum and (ii) Company shall pay
and be responsible for all costs of ownership attributable to the automobile
which Company currently owns and provides Executive for its use, and for any
replacement automobile leased or purchased by Company pursuant to Section 9
below.
(e) In addition, during the Term and subject to Executive
providing proper documentation, Company shall reimburse Executive for reasonable
travel, entertainment and other expenses incurred by Executive in providing
services hereunder on behalf of Company, including pre-approved expenses during
the Consulting Term.
(f) Following any termination of the Employment Term, to the
extent permitted by law and the party providing such benefits, Executive may, at
his sole cost and expense, continue any fringe benefits, if obtainable, then
being provided to Executive which are not provided by the Company during the
Consulting Term under (b) above.
8. Bonus. (a) Subject to paragraph (b) of this Section 8, in addition
to the compensation set forth above, Executive shall be entitled to a bonus
payable with respect to each calendar year occurring during the Employment Term
of this Agreement (for purposes of this Section 8 each a "Bonus Year") in an
amount equal to 7.5% of the product of (i) the amount by which the Per Share Net
Cash From Operations (as hereinafter defined) for such Bonus Year exceeds $.57
per share for calendar years 2004, 2005 and 2006, $.60 per share for calendar
years 2007, 2008 and 2009, and $.63 per share for calendar years 2010 and 2011
to the extent any aforesaid year is a Bonus Year and (ii) the number of shares
outstanding at the end of such Bonus Year. Notwithstanding the foregoing, the
bonus in any Bonus Year shall not exceed 33-1/3% of the salary compensation set
forth in Section 4 for such year (prorated if any partial year is involved or
prorated through the date of any merger of the Company or the sale or
liquidation of all or substantially all of its assets, as the case may be). The
term Per Share Net Cash from operations shall mean the Net Income for such Bonus
Year (as shown on the Company's Audited Financial Statements), with the
following adjustments, divided by the number of shares outstanding at the end of
such Bonus Year.
(i) the addition back of any extraordinary deductions to income;
(ii) the addition back of depreciation of non-rental property,
depreciation on rental real estate and amortization of mortgage and
organization costs;
(iii) with respect to the sales of property and investments, including
foreclosed property, recognized in any Bonus Year (x) there shall be deducted
from net gain or loss, any discount or deferred gain, and (y) any depreciation
taken on the sold property during the periods that it was owned by Company shall
be added back before calculating the amount of the net loss or net gain.
(iv) the subtraction of all "amortization of discounts on notes and
fees" which are included in Net Income.
The Compensation Committee of Company shall calculate the Per Share Net
Cash from Operations in accordance with the formula set forth above, subject to
such adjustments for extraordinary or unforeseen transactions, including but not
limited to capital gains transactions, as in the reasonable judgment of the
Compensation Committee are fair and equitable to Company and Executive. Said
calculations shall be made with respect to any Bonus Year without regard to the
bonus payable in accordance with this Agreement (or any other employment or
similar Agreement with senior management) attributable to said year and/or
attributable to a prior year or years but paid in said year.
The bonus for any Bonus Year shall be paid on or before March 30th of
the next following year; provided, however, that if by March 30th of any year
the bonus for the prior Bonus Year has not been finally determined, then the
bonus shall be estimated and an amount equal to the estimated bonus will be paid
to Executive on March 30th and as soon as the actual bonus is finally
determined, the parties will make an appropriate adjustment.
Notwithstanding any other provisions of this Agreement, but subject to
paragraph (b) of this Section 8, in the event of any changes in the Company's
outstanding common stock by reason of a stock dividend, recapitalization,
merger, consolidation, reorganization, split up, extraordinary dividend,
combination or exchange of shares, or the like, Company and Executive shall, if
applicable, attempt in good faith to agree on appropriate adjustments to the
bonus calculation referred to in this paragraph so as to substantially carry out
the intention of this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary (i)
Executive shall not be entitled to a bonus on account of (w) any period
following the expiration of the Employment Term of this Agreement as set forth
in Section 3 above, (x) any Bonus Year in which his employment terminated
pursuant to Section 11(f) below or in which his employment is terminated for
cause, (y) any period following a merger of the Company or the sale or
liquidation of all or substantially all of its assets, or (z) any Bonus Year
occurring after a Bonus Year or period described in clauses (w), (x) or (y)
above, (whichever first occurs), and (ii) if this Agreement is terminated by
reason of the Executive's Permanent Disability or pursuant to Section 11(d),
Executive's bonus for the Bonus Year in which such termination occurs shall be
paid (x) to the extent provided in Section 11(b), as of the date on which
compensation is no longer payable under said Section 11(b), and (y) in the case
of termination pursuant to Section (d), as of the end of the calendar year in
which such notice of termination is given. In calculating Per Share Net Cash
from Operations to any such date (if it is not the last day of a calendar year)
the parties shall adjust (by projection to said date or as of said date, as the
case may be) based on the Net Income for the period ending on March 31, June 30,
September 30 or December 31 of such Bonus Year, whichever of said dates is
closest to the date with respect to which the Bonus is calculated.
9. Purchase of Replacement Automobile.During the Employment Term, upon
the request of Executive made subsequent to (i) January 1, 2007, and (ii)
thereafter, made subsequent to not less than 36 months from the previous request
made by Executive pursuant to this Section 9, Company shall make available to
Executive a new automobile for Executive's use, said automobile to be of a make
and model reasonably acceptable to Executive. Said automobile shall, at
Company's option, be either leased by Company or purchased by Company (title to
remain in Company's name). With respect to the first such request made by
Executive pursuant to this Section 9, the purchase price of said automobile
(exclusive of taxes), regardless of whether said automobile is purchased or
leased by Company, shall not exceed $47,000; provided, however, that Executive
may select a car costing more than $47,000 if Executive pays for the increased
costs to purchase or lease such automobile. With respect to any subsequent
request made by Executive pursuant to this Section 9, the aforesaid figure of
$47,000 shall be increased to $50,000, subject to such other reasonable
increases as the Company's Compensation Committee may approve. Company shall be
responsible for all costs of ownership attributable to said vehicle, including
but not limited to insurance, gas, oil, maintenance, repairs, etc. On the
termination of the Employment Term and Executive's employment as an employee, if
Company has purchased the vehicle, Executive may at any time within three (3)
weeks following the effective date of termination, purchase the vehicle from
Company at a price equal to the then "blue book" value of the vehicle times a
fraction, the numerator of which is the amount paid for said vehicle by Company,
including sales tax, "dealer prep", etc., but excluding any contributions made
by Executive, and the denominator of which is the amount (the "Total Purchase
Price") paid for said vehicle, including sales tax, "dealer prep", etc. and any
contributions made by Executive. In the event Executive does not timely purchase
the vehicle and Executive has made any contributions towards the purchase
thereof, if Company desires to retain ownership of the vehicle Company shall,
within three weeks following the earlier of (i) the expiration of the
aforementioned three (3) week period, or (ii) receipt of notice from Executive
that he shall not purchase said vehicle, pay to Executive the "blue book value"
of the vehicle, times a fraction, the numerator of which is the amount
contributed towards the purchase of said vehicle by Executive and the
denominator of which is the Total Purchase Price. If (i) Executive does not
timely purchase the vehicle, and (ii) Company does not desire to retain
ownership and Executive has contributed towards the purchase thereof, Company
shall promptly sell the vehicle and the parties shall divide the actual net
sales proceeds (after sales taxes and advertising costs, if any), with Executive
receiving a fraction (being the same fraction described in the immediately
preceding sentence) thereof and Company receiving the balance. Executive agrees
that on the Company providing the Executive with a new automobile pursuant to
this Section 9, the automobile then owned or leased by the Company and
theretofore utilized by Executive, and for which Company pays the expenses
pursuant to Section 7 above, may be retained or sold by Company and Executive
shall have no interest therein.
10. Stock Options. The stock options granted by Company to Executive
pursuant to Executive's Agreement dated as of January 1, 2000 (the "Existing
Stock Options") shall remain in full force and effect on the terms set forth in
said agreement. In addition, Company agrees that from time to time during the
Employment Term, to the extent that any Existing Stock Options are either (i)
exercised by Executive or (ii) lapse, if at the time of any such exercise or
lapse Executive is employed by Company, Company shall (as of the date of such
exercise or lapse) grant new stock options to Executive (the "New Stock
Options") to purchase a number of shares of Company's Class B common stock equal
to the number of shares covered by the Existing Stock Options which have been
exercised or have lapsed. Any New Stock Options so granted by Company shall be
subject to the terms and conditions of the existing Stock Option Plan dated
January 1, 1999 or any successor stock option plan (the "Stock Option Plan") and
on the following terms and conditions:
(a) the exercise price for each New Stock Option granted shall be a
price equal to the closing price of the Class B common stock of Company on the
date the option is granted;
(b) each New Stock Option granted pursuant to the terms of this
Section 10 shall be exercisable for a period of six years from the date such
option is granted, subject to earlier termination pursuant to the terms of the
Stock Option Plan.
(c) upon termination of Executive's employment as an employee for any
reason whatsoever, the Existing Stock Options and any New Stock Options granted
pursuant to the terms hereof shall terminate immediately except as provided
for in the Stock Option Plan.
Company's obligations pursuant to this Section 10 are subject to the
receipt, if and to the extent required by the American Stock Exchange or the
Securities and Exchange Commission, of shareholder approval of the issuance of
any New Stock Option.
11. Termination; Termination Benefits. The Employment Term and/or the
Consulting Term hereunder shall be terminated as follows:
(a) The Employment Term and the Consulting Term, as the case may be,
shall terminate as provided in Section 3(a) of this Agreement.
(b) Executive's death or Permanent Disability. The term "Permanent
Disability" shall mean physical or mental incapacity of a nature which prevents
Executive, or will prevent Executive, in the reasonable determination of the
Board of Directors of Company, from performing his duties under this Agreement
for a continuous period of four months or any aggregate period of six months in
any 12 month period. Permanent Disability shall be deemed to have occurred as of
said determination.
(i) If the Term is terminated during the Employment Term
because of Executive's Permanent Disability, the Company shall pay, when the
same would otherwise have been payable in accordance with this Agreement, to
Executive or his representative, (i) Executive's salary described in Section 4
above, as then in effect, less any disability benefits payable to Executive from
policies maintained by Company, (ii) the bonus described in Section 8 above,
subject to paragraph (b) thereof, plus (iii) Executive's fringe benefits as
described in Section 7 only (but not as described in Section 9 if the automobile
in question had not yet been delivered to Executive as of the date of
determination by the Board), until (again subject to paragraph (b) of Section 8
with respect to any payment pursuant to Section 8) that day which is thirty-six
(36) months after the date of determination of Executive's Permanent Disability;
provided however that subsequent to that day which is six (6) months after the
date of determination of Executive's Permanent Disability, the payments set
forth in subparagraphs (i) and (ii) above shall be reduced to 50% of such
amounts, less 100% of any disability payments payable to Executive from policies
maintained by Company. The above provisions of this Section 11(b) shall not
apply to the Consulting Term and if the Consulting Term is terminated because of
Executive's Permanent Disability, the Company's only obligation shall be payment
of Executive's consulting fees pursuant to Section 4(b) through the date of
termination of the Consulting Term.
(ii) If the Employment Term is terminated because of
Executive's death, the Company shall pay, when the same would otherwise have
been payable in accordance with this Agreement, to Executive's beneficiary or
beneficiaries designated in writing to the Company, or to Executive's estate in
the absence or lapse of such designation, (i) Executive's salary described in
Section 4 above, as then in effect and (ii) the bonus described in Section 8
above, (again subject to paragraph (b) of Section 8 with respect to any payment
pursuant to said Section 8), in each case for a period of one (1) year following
Executive's death, whether or not the term of employment would have terminated
pursuant to Section 3(a) prior to the end of such one (1) year period.
(iii) Notwithstanding the foregoing, if the Term is terminated
prior to the commencement of the Consulting Term there will be no Consulting
Term, and if the Consulting Term is terminated because of Executive's death, the
Company's only obligation shall be payment of Executive's consulting fees
pursuant to Section 4(b) through the date of termination of the Consulting Term.
(c) Executive's employment being terminated by the Board "for cause"
pursuant to Section 3(b) of this Agreement or by reason of the Company's
Bankruptcy. If Executive's employment is terminated during the Employment Term
for cause or by reason of the Company's Bankruptcy, there will be no Consulting
Term and the Company's only obligation to Executive shall be payment of
Executive's salary as described in Section 4 above and fringe benefits as
described in Section 7 above (but not the bonus compensation set forth in
Section 8 above for any period in the year in which such termination occurs), as
in effect at the date of termination, through the date of such termination. If
Executive's retention as a consultant and the Consulting Term is terminated for
cause or by reason of the Company's Bankruptcy, the Company's only obligation to
Executive shall be payment of Executive's consulting fees pursuant to Section 4
above as in effect at the date of termination through the date of such
termination. Any termination of Executive's employment or retention as a
consultant under this Section 11(c) shall not affect Company's obligation to
make the Retirement Payments set forth in Section 12(b) below.
(d) Executive's employment may be terminated by the Company effective
December 31 of any year occurring during the Employment Term of this Agreement,
upon written notice to Executive given at any time prior to any such December 31
date, if the Board of the Directors of the Company in its sole discretion
determines in good faith that Executive has not diligently performed his duties
as Executive Vice President and Chief Financial Officer of the Company to the
satisfaction of the Board of Directors. If Executive's employment is terminated
pursuant to this paragraph (d) of Section 11, Executive shall be entitled to
receive Executive's salary per Section 4 above and fringe benefits per Section 7
above but not per Section 9 above (unless the automobile described in said
Section 9 was delivered to Executive prior to said termination without cause),
which he would but for such termination have received hereunder during or with
respect to the period ending ninety (90) days after the end of the calendar year
in which Executive's employment is terminated pursuant to this Section 11(d)
(and at the times provided in Section 4 hereof in the case of compensation
pursuant to said Section). Any termination of Executive's employment under this
Section 11(d) shall not affect the Employer's obligation to make the Retirement
Payments set forth in Section 12(b) below.
(e) Executive's employment being terminated by the Board "without
cause". Termination "without cause" shall mean termination of the Employment
Term on any basis other than those provided in paragraphs (a), (b), (c) (d) or
(f) of this Section 11. Failure to continue to elect Executive as Executive Vice
President at all times during the Employment Term, or a material and substantial
change of the duties of the Executive provided in Section 2(a) at any time
during the Employment Term, shall constitute a material breach of this Agreement
and a termination of Executive's employment under this Agreement without cause.
Except as provided in the previous sentence for which no notice is required, if
the Employment Term is terminated without cause, the Board shall give 10 days
notice thereof to Executive, and Executive shall be entitled to receive
Executive's salary per Section 4 above, fringe benefits per Section 7 above but
not per Section 9 above (unless the automobile described in said Section 9 was
delivered to Executive prior to said termination without cause), and, subject to
paragraph (c) of Section 10 above, all other compensation (including the bonus
compensation set forth in Section 8 above, without regard to the provisions of
Section 8(b) above) which he would have received hereunder but for such
termination in respect of the unexpired portion of the Employment Term (in the
amounts and at the times provided in Sections 4 and 8 hereof in the case of
compensation pursuant to said Sections). Any such notice shall also be deemed to
constitute the three (3) year notice described in Section 3(a)(i) of this
Agreement. Any termination of Executive's employment "without cause" shall not
affect the Company's obligation to make the Retirement Payments set forth in
Section 12(b) below. Such termination right "without cause" shall not be
applicable to or affect the Consulting Term except the Consulting Term shall
commence on the day following such termination of the Employment Term.
(f) Upon Executive voluntarily resigning his employment or consulting
engagement hereunder. If Executive's employment or consulting engagement is
terminated because Executive voluntarily resigns his employment or consulting
engagement hereunder, the Company's only obligation to Executive with respect to
the Employment Term or Consulting Term, as the case may be, shall be the payment
of Executive's salary or fees pursuant to Section 4 above and fringe
benefits-pursuant to Section 7 above (but not the bonus provided by Section 8
above) as in effect at the date of such termination through the effective date
of such termination. Any termination resulting from Executive's voluntary
resignation from his employment hereunder or consulting engagement shall not
affect Company's obligation to make the Retirement Payments set forth in Section
12(b) below.
12. The Retirement Period.
(a) The Retirement Period shall commence on the first day following the
termination of the Consulting Term or if there is no Consulting Term, the first
day following the termination of the Employment Term. The Retirement Period
shall end on the day of Executive's death. The commencement and continuance of
the Retirement Period shall not depend in any way upon the existence of an
active period of employment or consulting relationship between Executive and
Company immediately prior to the commencement of the Retirement Period.
(b) Commencing with the 49th month of the Retirement Period, the
Company agrees to pay to Executive, until the expiration of the Retirement
Period, in equal monthly installments, the sum of $29,000 per annum (the
"Retirement Payments"); provided, however, that the $29,000 annual payment shall
be increased annually after the first full year of such payments to an amount
equal to the product derived by multiplying the payment in what is then the
immediately preceding year by the lesser of (i) one (1) plus 50% of the
"fraction" forming a part of the definition of the Cost of Living Adjustment
Factor (as heretofore defined) for the period in question, and (ii) 1.05.
(c) Executive's right to receive the payments provided for in this
Section 12 (i) shall not be contestable by Company for any reason whatsoever and
(ii) shall be in lieu of any right of Executive to receive retirement payments
under any previous agreement with Company, except with respect to Company's
Defined Benefit Plan, and Executive hereby waives and relinquishes any such
rights.
(d) During the Retirement Period the Company shall, without duplication,
maintain in full force and effect, Group Life policies and Major Medical and/or
"medigap" policies and disability insurance, which (together with Medicare or
other benefits which may otherwise then be available to Executive without cost
to Executive), shall provide Executive with benefits substantially similar to
those existing for senior employees of the Company at the time of Executive's
retirement. Executive shall continue to be responsible for any and all premiums
attributable to Executive's spouse and children.
13. Entire Agreement; Amendment. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter contained herein:
This Agreement may be amended, modified or supplemented only by written
agreement of Company and Executive expressly setting forth the amendment. This
Agreement amends, restates, supersedes, and replaces in its entirety, that
certain Employment Agreement dated as of January 1, 2004 by and between
Executive and Company.
14. Waiver of Compliance. Any failure of either party to comply with any
obligation, covenant, agreement or condition on its part contained herein may be
expressly waived in writing by the other party, but such waiver or failure to
insist upon strict compliance shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires or
permits consent by or on behalf of any party, such consent shall be given in
writing.
15. Notices. All notices, requests, demands and other communications required or
permitted hereunder shall be in writing and shall be deemed given if delivered
by hand or five days after having been mailed, certified or registered mail with
postage prepaid:
if to Company, to:
Presidential Realty Corporation
180 South Broadway
White Plains, New York 10605
Attention: Chairman of the Board of Directors
With a copy to:
Chairman, Compensation Committee
if to Executive, to:
Thomas Viertel
333 West 56th Street
New York, New York 10019
16. Assignment. This Agreement shall inure to the benefit of Executive
and Company and be binding upon the successors and general assigns of Company.
Except as expressly provided herein, this Agreement and Executive's duties
hereunder shall not be assigned or delegated.
17. Invalid Provisions. If any provision hereof is held to be illegal,
invalid or unenforceable under present or future laws effective during the Term
hereof, such provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof; and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom. In lieu of such
illegal, invalid or unenforceable provision there shall be added automatically
as a part hereof a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
18. Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
COMPANY:
PRESIDENTIAL REALTY CORPORATION
By:/s/ Robert E. Shapiro
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Robert E. Shapiro,
Chairman of the Board of Directors
EXECUTIVE:
/s/ Thomas Viertel
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Thomas Viertel