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Exhibit
10.26
CONSULTING
AGREEMENT
THIS CONSULTING
AGREEMENT (“Agreement”) is made effective as of the
1 st
day of January, 2008, by and
between FEDERAL REALTY INVESTMENT TRUST (the
“Trust”) and LARRY E. FINGER
(“Consultant”).
RECITALS
The Trust desires to engage
Consultant to serve as a consultant to the Trust and Consultant
desires to so serve as a consultant to the Trust.
NOW THEREFORE, in
consideration of the covenants set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Trust and Consultant hereby agree as
follows:
1.
Appointment as Independent Consultant . The Trust agrees
to engage Consultant as an independent consultant, for the purposes
set forth in Section 3 of this Agreement. The parties
acknowledge and agree that nothing in this Agreement shall
constitute or be construed as constituting, creating or extending
an agency, partnership, master-servant or employer-employee
relationship between the Trust and Consultant for the period
covered by this Agreement. Consultant acknowledges that he will not
be authorized to bind the Trust during the Term of this Agreement
and hereby agrees that he will not hold himself out to third
parties during the Term of this Agreement as having the authority
to bind the Trust.
2.
Term. Unless earlier terminated as provided in
Section 6 , the term of this Agreement shall commence
on January 1, 2008, and shall continue through and including
February 29, 2008 (“Term”). Consultant shall
return to the Trust any and all records, reports, documents and
other materials relating to the Services that are in his possession
or control, by overnight courier within twenty-four (24) hours
after the first to occur of: (a) a request by the Trust; or
(b) March 1, 2008. The Trust shall promptly reimburse
Consultant for actual charges incurred to deliver such
materials.
3.
Services by Consultant. During the term of this
Agreement, Consultant shall provide support for the accounting,
capital markets and asset management functions at the Trust.
Consultant shall also perform such services as may be assigned to
him from time to time by Donald C. Wood, the Trust’s
Chief Executive Officer, or Joseph M. Squeri, the Trust’s
Chief Financial Officer as of January 1, 2008, or any other
individual designated by the Trust’s Chief Executive Officer
(“Services”). Consultant shall devote such time as he
and the Trust’s Chief Executive Officer deem reasonably
necessary for Consultant to perform the Services consistent with
the compensation being paid.
4.
Payments/Support Services.
(a) Consulting Fee. The Trust
agrees to pay Consultant a consulting fee (“Consulting
Fee”) equal to the sum of: (i) a weekly fee in the
amount of Six Thousand Seven Hundred Thirty and 77/100 Dollars
($6,730.77) (“Base Fee”). In no event shall the total
Base Fee for the nine (9) week term of this Agreement exceed
Sixty Thousand Five Hundred Seventy-Six and
92/100 Dollars ($60,576.92); plus (ii) an
amount equal to the FICA taxes that would have been paid by the
Trust on the Base Fee if Consultant had been an employee of the
Trust for the period covered by this Agreement. The Trust shall pay
the Consulting Fee to Consultant on a bi-weekly basis.
(b) Support Services. During the
Term of this Agreement, the Trust will provide Consultant with his
current office space in the Trust’s Rockville, Maryland
office, as well as the same administrative support
(which may be shared), computer services
(with a connection to the Trust’s network), a phone, fax,
blackberry and other items and services that Consultant had
available to him prior to January 1, 2008 and which the Trust
deems necessary to enable Consultant to perform the Services. The
Trust will reimburse Consultant or pay directly in accordance with
the Trust’s Travel and Entertainment Policy, all reasonable
costs and expenses necessary in connection with the performance of
the Services hereunder, such as out of town travel and related
expenses. For all air travel, Consultant shall be permitted to
travel First Class and the Trust will reimburse for the amounts of
such travel.
(c) Change in Control Payment. In
the event there occurs a Change in Control (defined below) during
the term of this Agreement, the Trust shall pay to Consultant the
amount Consultant would have been entitled to receive if Consultant
were still the executive Vice president-Chief Financial Officer and
Treasurer of the Trust upon a Change in Control pursuant to that
certain Severance Agreement dated as of March 1, 2002 between
the Trust and Consultant, as amended (“Severance
Agreement”), the provisions of which are incorporated herein
by reference. For purposes of this Agreement, “Change in
Control” shall have the meaning set forth in the Severance
Agreement.
5.
Confidentiality and Nondisclosure/Ownership of Intellectual
Property . Consultant hereby acknowledges and agrees that
he will keep the Trust’s records and information confidential
on the same terms and conditions as set forth in the
confidentiality agreement dated March 1, 2002
(“Confidentiality Agreement”). The terms and conditions
of the Confidentiality Agreement are incorporated herein in their
entirety by reference.
6.
Termination. Either the Trust or Consultant may
terminate this Agreement for any reason or no reason on
ten (10) business days prior written notice. Upon any such
termination, the Trust shall pay to Consultant the Consulting Fee
due and owing through the effective date of termination together
with the Non-Compete Payment (defined below).
7.
Non-Compete/Non-Solicitation.
(a) Payment and Term. Consultant
hereby agrees to be bound by and comply with the non-compete and
non-solicitation provisions set forth in this
Paragraph 7 for the period from January 1, 2008
through and including February 28, 2011 (“Non-Compete
Term”). In consideration for Consultant’s agreement to
be bound by and comply with the provisions of this
Paragraph 7 during the Non-Compete Term, the Trust
shall pay to Consultant on or before February 29, 2008 a cash
payment in the amount of Once Hundred Thousand Dollars ($100,000)
(“Non-Compete Payment”).
(b) Non-Compete Terms and
Provisions.
(i)
Consultant agrees to comply with the
following limitations and restrictions during the Non-Compete
Term:
(A) Consultant shall
not, without the prior written consent of the Trust, for himself or
on behalf of or in conjunction with any other person, persons,
company, firm, partnership, corporation, business, group or other
entity (each, a “Person”), work on or participate in
the acquisition, leasing, financing, pre-development or development
of any project or property which was considered and actively
pursued by the Trust or its affiliates for acquisition, leasing,
financing, pre-development or development during the term of this
Agreement.
(B) Consultant shall not,
without the prior written consent of the Trust, serve as an
employee of, consultant to or serve on the Board of Directors or
similar body of, any company that satisfies either of the following
criteria (“Peer Group Company”): (A) any public
shopping center company that is considered by the Trust from time
to time to be a competitive business; or (B) any private real
estate company
2
that would be considered from time to
time to be a competitive business if it were a public company. The
foregoing shall not prohibit Consultant from serving as an employee
of, consultant to, or serving on the Board of Directors or similar
body of, any company that does not qualify as a Peer Group Company.
Notwithstanding the foregoing, Consultant acknowledges that
companies that may be considered a Peer Group Company of the Trust
may change from time to time and that if during the term of this
Agreement Consultant serves as an employee of, consultant to, or
serves on the Board of Directors or similar body of, a company that
becomes a Peer Group Company at any time during the Non-Compete
Term, Consultant shall be required immediately to resign as an
employee of or consultant to such company and from the Board of
Directors or similar body of such company. As of
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