EXHIBIT 10.11
INDEPENDENT DIRECTOR'S CONTRACT
THIS AGREEMENT (The "Agreement") is made as of the ___ day of October 2004 and
is by and between Cedar-Franklin Village LLC, a Delaware limited liability
company (hereinafter referred to as "Company") and Suzanne M. Hay (hereinafter
referred to as "Director").
BACKGROUND
Company desires to retain Director for the duties of Independent
Director and Director desires to be retained for such position and to perform
the duties required of such position in accordance with the terms and conditions
of this Agreement.
AGREEMENT
In consideration for the above recited promises and the mutual promises
contained herein, the adequacy and sufficiency of which are hereby acknowledged,
Company and Director hereby agree as follows:
1. DUTIES. The Company hereby requires that the Director is available
to perform such duties as Independent Director as may be determined and assigned
by the Board of Directors of the Company and the Company's Limited Liability
Company Agreement. Director agrees to devote as much time as is necessary to
perform completely the duties as Independent Director of the Company.
2. TERM. Except in the case of early termination, as hereinafter
specifically provided, the term of this Agreement shall commence as of October
__, 2004 and shall continue for an indefinite period.
3. COMPENSATION. For all services to be rendered by Director in any
capacity hereunder, the Company agrees to pay Director a base fee of $1,500 per
year payable in advance. The initial year's Base fee is considered earned when
paid and is nonrefundable. The initial year's payment of $1,500 is due upon
execution of this Agreement; thereafter, payment shall be due on or before
October 1st of each succeeding year. Such fee may be adjusted from time to time
as agreed by the parties. Director attendance at any meetings outside of the
greater Wilmington area will be compensated at a mutually agreed upon rate.
Company agrees to increase the base fee in the event of an increase in
the cost of living. Such increase shall occur on October 1st, beginning October
1, 2009 and then October 1st of each succeeding year. The base fee set forth in
paragraph 3, as adjusted by previous cost of living adjustments, will be
increased by the percentage by which the U.S. Consumer Price Index, All Urban
Consumers (CPI-U), All Items, has increased since the previous anniversary or
escalation date.
4. EXPENSES. In addition to the compensation provided in paragraph 3
hereof, the Company will reimburse Director for pre-approved reasonable business
related expenses incurred in good faith in the performance of Director's duties
for the Company. Such payments shall be made by the Company upon submission by
the Director of a signed statement itemizing the expenses incurred. Such
statement shall be accompanied by sufficient documentary matter to support the
expenditures.
5. CONFIDENTIALITY. The Company and Director each acknowledge that, in
order for the intents and purposes of this Agreement to be accomplished,
Director shall necessarily be obtaining access to certain confidential
information concerning the Company and its affairs, including, but not limited
to business methods, information systems, financial data and strategic plans
which are unique assets of the Company ("Confidential Information"). Director
covenants not to, either directly or indirectly, in any manner, utilize or
disclose to any person, firm, corporation, association or other entity any
Confidential Information.
6. NOTICE OF MATERIAL ADVERSE CHANGE IN FINANCIAL CONDITION OF THE
COMPANY. The Company shall notify Director in writing, at the earliest
practicable time, of any material adverse change in the financial condition of
the Company.
7. TERMINATION. With or without cause, the Company and Director may
each terminate this Agreement at any time upon ten (10) days written notice, and
the Company shall be obligated to pay to Director the compensation and expenses
due up to the date of the termination. If termination occurs prior to October
1st of any year after the first year of this agreement, the Company shall be
entitled to receive, upon written request by the Company, a prorated refund of
the portion of the base fee that relates to the period after the termination
date. Such written request must be submitted within ninety (90) days of the
termination date. Nothing contained herein or omitted herefrom shall prevent the
member(s) of the Company from removing Director with immediate effect at any
time for any reason.
8. INDEMNIFICATION. The Company shall indemnify, defend and hold
harmless Director, to the full extent allowed by the law of the State of
Delaware, and as provided by, or granted pursuant to, any charter provision,
operating agreement provision, agreement (including, without limitation, the
Indemnification Agreement executed herewith), vote of members or disinterested
managers or otherwise, both as to action in Director's official capacity and as
to action in another capacity while holding such office, to the extent such
other action and capacity are required by the Board of Directors of the Company
or by the Company's Limited Liability Company Agreement.
9. EFFECT OF WAIVER. The waiver by either party of the breach of any
provision of this Agreement shall not operate as or be construed as a waiver of
any subsequent breach thereof.
10. NOTICE. Any and all notices referred to herein shall be sufficient
if furnished in writing at the following addresses:
To the Company: Cedar-Franklin Village LLC
c/o Cedar Shopping Centers Partnership, L.P.
44 South Bayles Avenue
Port Washington, NY 11050
Attn: Brenda J. Walker
With copy to: Cedar Shopping Centers Partnership, L.P.
44 South Bayles Avenue
Port Washington, NY 11050
Attn: Stuart H. Widowski, Esq.
To Director: Suzanne M. Hay
Entity Services (SPV), LLC
103 Foulk Road, Suite 200
Wilmington, DE 19803
11. ARBITRATION. Any dispute or claim arising out of, or relating to,
this Agreement or any breach thereof, with the sole exception of any dispute or
claim arising out of, or relating to, indemnification and advancement rights of
Director, shall be submitted to binding arbitration which shall take place at
Wilmington, Delaware, in accordance with the Rules of the American Arbitration
Association; and judgment upon the award rendered may be entered in any court
having jurisdiction over the dispute. The agreement to arbitrate herein recited
is based upon mutual consideration exchanged between the parties hereto, and is
irrevocable. The award of the arbitrators shall be rendered by majority
agreement and shall constitute a final resolution of the dispute or claim on
questions of both law and fact pertaining to the dispute or claim submitted
hereunder.
12. GOVERNING LAW. This Agreement shall be interpreted in accordance
with, and the rights of the parties hereto shall be determined by, the laws of
the State of Delaware without reference to that state's conflicts of laws
principles.
13. ASSIGNMENT. The rights and benefits of the Company under this
Agreement shall be transferable, and all the covenants and agreements hereunder
shall inure to the benefit of, and be enforceable by or against, its successors
and assigns. The duties and obligations of the Director under this Agreement are
personal and therefore Director may not assign any right or duty under this
Agreement without the prior written consent of the Company.
14. MISCELLANEOUS. (a) If any provision of this Agreement shall be
declared invalid or illegal, for any reason whatsoever, then, notwithstanding
such invalidity or illegality, the remaining terms and provisions of the within
Agreement shall remain in full force and effect in the same manner as if the
invalid or illegal provision had not been contained herein; (b) This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto, and
their respective heirs, executors, administrators, successors and assigns.
15. ARTICLE HEADINGS. The article headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Independent
Director's Contract to be duly executed and signed as of the day and year first
above written.
Cedar-Franklin Village LLC
BY:
--------------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
INDEPENDENT DIRECTOR
BY:
--------------------------------------------
Suzanne M. Hay
INDEMNIFICATION AGREEMENT
This Agreement is made as of the ___ day of October 2004, by
and between Cedar-Franklin Village LLC ("Indemnitors") and Suzanne M. Hay
(Indemnitee").
DEFINITIONS
Company Cedar-Franklin Village LLC
Expenses
All expenses, including reasonable attorneys' fees and
experts' fees, incurred in defense of or as a witness in a
civil or criminal action, suit or proceeding (including an
action by or in respect of the Company) and including
investigations by any government agency. Expenses include all
costs and charges incurred in preparation for any threatened
action, suit or proceeding, and appeals therefrom.
Losses
Damages, judgments, fines, penalties and amounts paid in
settlement incurred by Indemnitee in defending any civil or
criminal action, suit or proceeding, including investigations
by any government agency.
Asserted Liability
Any demand, claim or circumstance, which would give rise to a
claim or the commencement (or the threatened commencement) of
any action, proceeding or investigation that may result in
Losses which are subject to indemnification hereunder.
AGREEMENT
Indemnitors wish Indemnitee to serve as an Independent Director of the Company
and have requested that Indemnitee do so, and Indemnitee has agreed to serve in
such capacity under certain circumstances. In order to induce Indemnitee to
serve as an Independent Director and in consideration of Indemnitee's service in
such capacity, Indemnitors hereby agree to indemnify Indemnitee as follows:
1. Indemnification.
(a) Indemnitors shall pay on behalf of Indemnitee and his/her
estate, heirs, legal representatives or assigns any amount
which Indemnitee becomes legally obligated to pay on account
of (i) any claim(s) made against him/her for any error,
misstatement or misleading statement, act or omission, or
neglect or breach of duty committed, attempted or allegedly
committed or attempted by Indemnitee in the discharge of
his/her duties in his/her capacity of Independent Director or
(ii) any matter claimed against him/her by reason of his/her
serving in such capacity (including an action by or in the
right of the Company); provided that Indemnitor shall have no
obligation to indemnify Indemnitee to the extent of loss
arising from the willful misconduct, gross negligence or
self-dealing of the Indemnitee. The payments which Indemnitor
shall be obligated to make hereunder shall include, but not be
limited to, Expenses and Losses, so long as Indemnitee is
otherwise entitled to be indemnified hereunder in respect of
losses, action, suit or proceeding.
(b) Promptly after receipt by Indemnitee of notice of any Asserted
Liability that may result in losses, which are subject to
indemnification hereunder, Indemnitee shall give notice
thereof to Indemnitor.
2. Advance of Expenses. Expenses shall be promptly paid by Indemnitor in
advance of the final disposition of any action upon receipt of an
unsecured commitment by Indemnitee to repay amounts so advanced if it
shall ultimately and finally be determined that Indemnitee is not
entitled to be indemnified pursuant to this Agreement. In a suit
brought by Indemnitee to enforce a right to advances, it shall not be a
defense that he/she has not met the applicable standard of conduct set
forth in Delaware law with regard to indemnification.
3. Enforcement. If a claim under this Agreement is not paid promptly by
Indemnitor, the Indemnitee may bring suit against Indemnitor to recover
the unpaid amount of the claim and, if successful, in whole or in part,
the Indemnitee shall be entitled to be paid also the expense of
prosecuting such claim (including reasonable attorney's fees and other
expenses).
4. Subrogation. In the event of payment under this Agreement, Indemnitor
shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee.
5. Reimbursement. If it is ultimately and finally determined that
Indemnitee would not be permitted to be indemnified under the terms of
this Agreement or applicable law, Indemnitor shall be entitled to be
reimbursed by Indemnitee for all amounts advanced or paid; provided
that any obligation to reimburse Indemnitor shall be deferred until the
conclusion of any legal proceedings to determine whether such
reimbursement is legally required.
6. Effectiveness. All agreements and obligations of Indemnitor contained
herein shall continue during the period Indemnitee is an Independent
Director of the Company and shall continue thereafter so long as
Indemnitee shall be subject to any possible claim or threatened,
pending or completed action, suit or proceeding, whether civil,
criminal or investigative, by reason of the fact that Indemnitee was a
Independent Director of the Company.
7. Successors. This Agreement shall be binding upon all
successors-in-interest to Indemnitor and shall inure to the benefit of
the heirs, personal representatives and estate of Indemnitee.
8. Severability. If any provision or provisions of this Agreement shall be
held to be invalid, illegal or unenforceable for any reason whatsoever,
the validity, legality and enforceability of the remaining provisions
of this Agreement shall not in any way be affected or impaired thereby,
and shall be construed so as to give effect to the intent of the
parties that Indemnitor provide protection to Indemnitee to the fullest
enforceable extent.
9. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
instrument.
10. Other Rights. The rights of the Indemnitee hereunder shall be in
addition to, and not in limitation of (or in any way limited by) any
other rights the Indemnitee may have under the certificate of formation
or operating agreement or any other agreement, under the appropriate
corporate law, or otherwise, it being understood that the rights set
forth hereunder may be enhanced but in no event shall be diminished in
any way.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with Delaware law, but without reference to the conflicts of
laws principles of that jurisdiction.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this
Indemnification Agreement to be duly executed and signed as of the day and year
first above written.
Cedar-Franklin Village LLC
By: ________________________________
Name:
Title:
_________________________________________
Suzanne M. Hay