EMPLOYMENT
AGREEMENT
EMPLOYMENT AGREEMENT dated as
of November 15, 2005, by and between Feldman Mall Properties, Inc.,
with its principal place of business at 3225 North Central Avenue,
Suite 1205, Phoenix, Arizona 85012 (the “Company”) and
Wayne Snyder, residing at the address set forth on the signature
page hereof (the “Executive”).
WHEREAS, the Company wishes to
employ the Executive, and the Executive wishes to accept such
offer, on the terms set forth below:
Accordingly, the parties
hereto agree as follows:
1.
Employment . The Company hereby employs the Executive, and
the Executive hereby accepts such employment. Such employment shall
continue until such time as either party notifies the other party
of termination not less than thirty (30) days in advance of the
effective date of termination (the period during which the
Executive is employed hereunder being hereinafter referred to as
the “Term”).
2.
Duties . During the Term, the Executive shall be employed by
the Company as an Executive Vice President of the Company in charge
of development, and, as such, the Executive shall faithfully
perform for the Company the duties of said office and shall perform
such other duties of an executive, managerial or administrative
nature as shall be specified and designated from time to time by
the Chief Executive Officer (“CEO”) of the Company. The
Executive shall report to the CEO and to the Board of Directors
(“Board”). The Executive shall devote substantially all
of his business time and effort to the performance of his duties
hereunder; provided that in no event shall this sentence prohibit
the Executive from performing personal and charitable activities,
and other business interests that do not conflict with any business
activities of the Company.
3. Compensation.
3.1
Salary . The Company shall pay the Executive during the Term
a salary at a minimum rate of $225,000 per annum (the “Annual
Salary”), in accordance with the customary payroll practices
of the Company applicable to senior executives. At least annually,
the Board shall review the Executive’s Annual Salary and may
provide for such increases therein as it may in its discretion deem
appropriate. (Any such increased salary shall constitute the
“Annual Salary” as of the time of the
increase.)
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3.2
Bonus . During the Term, in addition to the Annual Salary,
on May 1, 2006, January 1, 2007, and every six months thereafter
during the Term, the Executive shall have the opportunity to
receive a bonus; the bonus on May 1, 2006 would be up to $87,500,
the bonus on January 1, 2007 would be up to $108,333, and each
six-month bonus thereafter (i.e. every January 1 and July 1) would
be up to $62,500. The amount of the Executive’s bonus under
the preceding sentence shall be determined by the Company
considering only the Executive’s performance, including the
accuracy of construction scheduling and budgets, and without regard
to the Company’s overall economic performance. The foregoing
bonuses will be paid to the Executive within ten (10) days
following the bonus date specified above. The forgoing shall not
limit the Executive’s eligibility to receive any other bonus
under any other bonus plan, stock option or equity–based
plan, or other policy or program of the Company, but Executive
acknowledges that the Company will consider the bonus provided to
Executive under the first sentence of this Section 3.2 in
determining the presence or amount of Executive’s
participation in any other bonus plan.
3.3
Benefits – In General . The Executive shall be
permitted during the Term to participate in any group life,
hospitalization or disability insurance plans, health programs,
retirement plans, fringe benefit programs and other benefits that
may be available to other senior executives of the Company
generally, on the same terms as such other executives, in each case
to the extent that the Executive is eligible under the terms of
such plans or programs, and coverage under the Company’s
health insurance and hospitalization plans shall include, and the
Company shall pay the premiums applicable to such coverage for, the
Executive, the Executive’s spouse, minor children and adult
children under age 25 who are full time undergraduate or graduate
students, to the extent elected by the Executive.
3.4
Vacation . The Executive shall be entitled to vacation of no
less than twenty (20) business days per year, to be taken by the
Executive on such days as may be approved by the CEO of the
Company. The Executive shall have the right to carry over unused
vacation days, but any such carry over of vacation days shall not
exceed twenty (20) business days at any time.
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3.5
Expenses – In General . The Company shall pay or
reimburse the Executive for all ordinary and reasonable
out-of-pocket expenses actually incurred (and, in the case of
reimbursement, paid) by the Executive during the Term in the
performance of the Executive’s services under this Agreement
in accordance with the Company’s policies regarding such
reimbursements, but in no event later than thirty (30) days
following request for reimbursement accompanied by copies of
bills). The Company shall provide the Executive with (a) an office
in the Philadelphia at such time as the Executive determines that
he no longer wishes to operate from his home, (b) secretarial
support and (c) to the extent determined necessary by the Company,
other reasonable support services.
3.6
Automobile . During the Term, the Company shall provide the
Executive with an automobile allowance of $500 per month, payable
pro-rata with each bi-weekly paycheck.
3.7
Cellular Telephone . During the Term, the Company shall
provide the Executive with the use of a cellular telephone, or, so
long as such will not increase the Company’s expense,
reimburse Executive (within thirty (30) days following monthly
invoice) for a cellular phone and phone plan obtained by the
Executive.
3.8
Stock Grant . Concurrently with execution of this Agreement,
Executive and Company shall execute a Restricted Stock Award
Agreement granting Executive certain rights in 38,168 shares of
stock in the Company. The Restricted Stock Award Agreement shall
govern the terms of such stock grant except where this Agreement
expressly governs; in the event of any conflict between this
Agreement and the Restricted Stock Award Agreement, this Agreement
shall control.
4.
Certain Terminations of Employment; Certain Benefits
.
4.1
Termination by the Company for Cause; Termination by the
Executive without Good Reason .
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(a) For
purposes of this Agreement, “Cause” shall mean the
Executive’s:
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(i)
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conviction of (or pleading
nolo contendere to) a felony (but in no event including a traffic
or similar violation);
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(ii)
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engagement in the performance
of his duties hereunder, in willful misconduct, willful or gross
neglect, fraud, misappropriation or embezzlement;
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(iii)
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repeated substantial failure
to materially adhere to the reasonable directions of the CEO, and
failure of the Executive to cure such failure within a reasonable
period of time following written notice; or
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(iv)
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material breach of any of the
provisions of Section 5, and failure of the Execute to cure such
breach within a reasonable period of time following written
notice.
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(b) The
Company may terminate this Agreement and the Executive’s
employment hereunder with or without Cause, and the Executive may
terminate his employment on at least 30 days’ written notice
given to the Company. If the Company terminates the Executive for
Cause, or the Executive terminates his employment and the
termination by the Executive is not for Good Reason (as hereinafter
defined), (i) the Executive shall receive Annual Salary and other
benefits (including any bonus for a bonus period (as described in
Section 3.2) completed before termination and awarded but not yet
paid) earned and accrued under this Agreement prior to the
termination of employment (and reimbursement under this Agreement
for expenses incurred prior to the termination of employment); and
(ii) the Executive shall have no further rights to any other
compensation or benefits under this Agreement on or after the
termination of employment, but the Executive shall retain any
shares of stock in the Company that have previously
vested.
4.2
Good Reason for Executive Termination . For purposes of this
Agreement, “Good Reason” shall mean, unless otherwise
consented to by the Executive,
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(i)
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the material reduction of the
Executive’s authority, duties and responsibilities or the
assignment to the Executive of duties materially inconsistent with
the Executive’s position with the Company;
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(ii)
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a reduction in Annual Salary
of the Executive;
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(iii)
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the relocation of the
Executive’s office to more than 25 miles from the
Executive’s home address shown at the end of this Agreement,
or the Executive not being provided with an office, office
equipment and access to secretarial assistance reasonably
comparable to that provided to other similarly situated officers of
the Company;
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(iv)
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the Company’s failure to
pay the Executive any amounts otherwise due hereunder or under any
plan, policy, program, agreement, arrangement or other commitment
of the Company; or
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(v)
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the Company’s material
and willful breach of this Agreement.
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Notwithstanding the foregoing,
(i) Good Reason shall not be deemed to exist unless notice of
termination on account thereof, specifying a termination date no
later than thirty (30) days from the date of such notice and
describing the event or condition purportedly giving rise to the
termination for Good Reason, is given by the Executive to the CEO
and the General Counsel of the Company within thirty (30) days
after such event is alleged to have occurred; (ii) if there
exists (without regard to this clause (ii)) an event or condition
that constitutes Good Reason, the Company shall have twenty (20)
days from the date notice of such a termination is given to cure
such event or condition and, if the Company does so, such event or
condition shall not constitute Good Reason hereunder; and (iii)
Good Reason shall not be deemed to exist at any time at which there
exists an event or condition which could serve as the basis of a
termination for Cause.
4.3
Termination Due to Death or Disability, Termination by Company
Without Cause, or Termination by Executive For Good Reason . If
the Executive dies during the Term, the Term shall terminate as of
the date of death, and the obligations of the Company to or with
respect to the Executive shall terminate in their entirety upon
such date except as otherwise provided under this Section 4. If the
Executive by virtue of ill health or other disability is unable to
perform substantially and continuously the duties assigned to him
for more than 180 consecutive or non-consecutive days out of any
consecutive 12-month period, the Company shall have the right, to
the extent permitted by law, to terminate the employment of the
Executive upon notice in writing to the Executive. Upon termination
of employment due to death or disability, upon termination of
employment by the Company without Cause or upon termination of
employment by the Executive for Good Reason, (i) the Executive (or
the Executive’s estate or beneficiaries in the case of the
death of the Executive) shall be entitled to receive any Annual
Salary and other benefits earned and accrued under this Agreement
prior to the date of termination (and reimbursement under this
Agreement for expenses incurred prior to the date of termination);
(ii) for a period of two years after termination of employment, the
Executive (if applicable), and in the event of his death, his
spouse and his dependents, shall receive such continuing coverage
under the group health plans they would have received under this
Agreement (but at such costs no higher than as in effect
immediately preceding such termination) as would have applied in
the absence of such termination, provided that, the Company shall
in no event be required to provide any benefits otherwise required
by this clause (ii) after such time as the Executive becomes
entitled to receive benefits of the same type from another employer
or recipient of the Executive’s services; (iii) without
duplication of any amounts due under clause (i), the Executive
shall receive an amount equal to the bonus that, in the absence of
such termination, would have been payable for the bonus period (as
described in Section 3.2) in which termination occurs, payable at
such time as would have applied in the absence of such termination,
with such amount to be multiplied by a fraction (x) the numerator
of which is the number of days in such period preceding the
termination and (y) the denominator of which is the number of days
in such period; (iv) all outstanding unvested equity-based awards
(including, without limitation, stock options and restricted stock)
held by the Executive shall fully vest and become immediately
exercisable, as applicable, and subject to the terms of such
awards; and (v) except as specified in the following sentence, the
Executive (or the Executive’s estate or beneficiaries in the
case of the death of the Executive) shall have no further rights to
any other compen
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