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UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 11, 2024
EMPIRE STATE REALTY TRUST, INC.
(Exact Name of Registrant as Specified in its
Charter)
Maryland |
001-36105 |
37-1645259 |
(State or other Jurisdiction
of Incorporation) |
(Commission
File
Number) |
(I.R.S. Employer
Identification No.) |
EMPIRE STATE REALTY OP, L.P.
(Exact Name of Registrant as Specified in its
Charter)
Delaware |
|
001-36106 |
|
45-4685158 |
(State
or other Jurisdiction
of Incorporation) |
|
(Commission
File Number) |
|
(I.R.S.
Employer
Identification No.) |
111 West 33rd Street, 12th Floor
New York, New York 10120
(Address
of Principal Executive Offices)
(212) 687-8700
(Registrant’s telephone number, including
area code)
n/a
(Former name or former address, if changed from
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class |
|
Trading
Symbol(s) |
|
Name of each exchange
on which registered |
Empire State Realty Trust, Inc. |
|
|
|
|
Class
A Common Stock, par value $0.01 per share |
|
ESRT |
|
The
New York Stock Exchange |
|
|
|
|
|
Empire State Realty OP, L.P. |
|
|
|
|
Series
ES Operating Partnership Units |
|
ESBA |
|
NYSE
Arca, Inc. |
|
|
|
|
|
Series
60 Operating Partnership Units |
|
OGCP |
|
NYSE
Arca, Inc. |
|
|
|
|
|
Series
250 Operating Partnership Units |
|
FISK |
|
NYSE
Arca, Inc. |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Co-Registrant CIK |
0001553079 |
Co-Registrant Amendment Flag |
false |
Co-Registrant Form Type |
8-K |
Co-Registrant Document Period EndDate |
2024-12-11 |
Co-Registrant Address Line One |
111 West 33rd Street |
Co-Registrant Address Line Two |
12th Floor |
Co-Registrant City or Town |
New York |
Co-Registrant State or Province |
New York |
Co-Registrant City Area Code |
212 |
Co-Registrant Local Phone Number |
687-8700 |
Co-Registrant Written Communications |
false |
Co-Registrant Solicitating Materials |
false |
Co-Registrant PreCommencement Tender Offer |
false |
Co-Registrant PreCommencement Issuer Tender Offer |
false |
Co-Registrant Emerging growth company |
false |
Item 5.02.
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
First Amendment
to Anthony Malkin’s Third Amended and Restated Employment Agreement
On December 11, 2024, following a recommendation
from the Compensation Committee (the “Compensation Committee”) of the Board of Directors (the “Board”) of Empire
State Realty Trust, Inc. (the “Company”) and Board approval, the Company and Anthony E. Malkin entered into an amendment
to his Third Amended and Restated Employment Agreement, dated as of September 20, 2024 (the “First Amendment to Third Amended and
Restated Employment Agreement”), to reflect an increase in the duration of his non-competition restrictive covenant from six (6)
months to one (1) year following the date of his termination of employment.
Employment Agreement with Christina Chiu
On December 11, 2024, following a recommendation
from the Compensation Committee and Board approval, the Company and Christina Chiu (the “President”) entered into, an
Employment Agreement (the “Employment Agreement”), pursuant to which the President will continue to serve as the President
of the Company, reporting to the Chairman and Chief Executive Officer of the Company.
The Employment Agreement provides for an initial
employment term of three years, with up to two (2) successive one (1) year renewal terms unless terminated earlier by either party. Pursuant
to the Employment Agreement, the President will be eligible to receive an annual base salary of $760,000, a target annual bonus of one
hundred thirty percent (130%) of her annual base salary, equity grants and other long-term incentive awards, a one-time cash retention
bonus (the “Retention Bonus”) of $750,000 (payable on December 11, 2027, subject to her continued employment through
the payment date), and to participate in the employee benefit and perquisite programs of the Company on terms no less favorable than those
applicable to other senior executives of the Company.
In addition, the Employment Agreement provides
that upon a termination of the President’s employment by the Company without “cause” or by the President for “good
reason” (each, as defined in the Employment Agreement), the President will be eligible for the following severance benefits (subject
to her execution of a release of claims): (i) any earned but unpaid annual bonus (the “Earned Bonus”), (ii) a pro-rata annual
bonus (based on actual level of performance) (the “Pro-Rata Bonus”), (iii) payment of the Retention Bonus (to the extent unpaid),
(iv) accelerated vesting in full of any service-based equity awards and pro-rata accelerated vesting of any performance-based equity awards
(based on actual level of performance) (the “Accelerated Equity Vesting”), (v) a cash amount equal to 200% (such percentage,
the “Severance Multiple”) of the sum of (a) the President’s then-current annual base salary and (b) the average annual
bonus paid to the President in each of the three most recently completed years (the “Cash Severance”), and (vi) a payment
equal to the difference between the President’s monthly COBRA premium cost and the cost to the President as if she was an employee
of the Company, for a period of eighteen (18) months (or, if shorter, until the President is eligible for benefits under another employer’s
plans) (clauses (i) through (vi) collectively, the “Severance Benefits”).
However, if the President’s Qualifying Termination
occurs during the twenty-four (24) month period beginning on a “change in control” (as defined in the Employment Agreement),
then the President will be eligible to receive the Severance Benefits (subject to her execution of a release of claims) except that for
purposes of the Accelerated Equity Vesting, the President’s performance-based equity awards will instead fully vest (based on actual
performance) and for purposes of calculating the Cash Severance amount, the Severance Multiplier will instead be 300%.
The Employment Agreement shall supersede the Change
in Control Severance Agreement, by and between the President and the Company, dated as of April 13, 2020.
The foregoing summaries of the First Amendment
to Third Amended and Restated Employment Agreement and the Employment Agreement do not purport to be complete and are qualified in their
entirety by reference to the full text of the First Amendment to Third Amended and Restated Employment Agreement and the Employment Agreement,
copies of which are filed as Exhibit 10.1 and Exhibit 10.2, respectively, hereto and incorporated herein by this reference.
Item 9.01.
Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURE
Pursuant
to the requirements of the Exchange Act, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| EMPIRE
STATE REALTY TRUST, INC. |
| (Registrant) |
| |
| By: |
/s/ Heather L. Houston |
| |
Name: Heather L. Houston |
| |
Title: Senior Vice President, Chief Counsel, Corporate & Secretary |
| |
Pursuant
to the requirements of the Exchange Act, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| EMPIRE STATE REALTY OP, L.P. |
| (Registrant) |
| |
| By: |
Empire State Realty Trust, Inc., |
| |
as general partner |
| |
|
| By: |
/s/ Heather L. Houston |
| |
Name: Heather L. Houston |
| |
Title: Senior Vice President, Chief Counsel, Corporate & Secretary |
Exhibit 10.1
FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This FIRST AMENDMENT TO THIRD
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Amendment”) dated as of December 11, 2024, is entered into by
and between Empire State Realty Trust, Inc., a Maryland corporation (the “Company”) and Anthony E. Malkin (“Executive”).
WHEREAS, the Company and Executive
previously entered into that certain Third Amended and Restated Employment Agreement, dated as of September 20, 2024 (the “Employment
Agreement”);
WHEREAS, Section 13 of
the Employment Agreement provides that it may be amended by written agreement signed by Executive and an authorized representative of
the Company, provided that such amendment be consented to on the Company’s behalf by the Board of Directors; and
WHEREAS, the Company and Executive
now desire to amend the Employment Agreement as set forth herein.
NOW, THEREFORE, in consideration
of the promises and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which
are mutually acknowledged, the Company and Executive hereby agree as follows:
1. Unless
the context requires otherwise, capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed thereto
in the Employment Agreement.
2. The
first clause of the first sentence of Section 6(c) of the Employment Agreement is hereby deleted in its entirety and replaced
with the following:
“Executive
covenants and agrees that during the period commencing on the Consolidation and ending on the one (1) year anniversary of the Termination
Date (the “Restricted Period”),”.
3. The
first clause of the first sentence of Section 6(d) of the Employment Agreement is hereby deleted in its entirety and replaced
with the following:
“During the
period commencing on the Consolidation and ending on the six (6) month anniversary of the Termination Date,”.
4. Except
as expressly amended by this Amendment, all of the terms and provisions of the Employment Agreement are unchanged and remain in full force
and effect. From and after the date of this Amendment, any reference to “this Agreement” or “hereto” in the Employment
Agreement and any reference to “the Employment Agreement” in this Amendment or in any other document or instrument executed
or delivered in connection therewith or herewith shall be construed as a reference to the Employment Agreement as amended by this Amendment.
5. This
Amendment and the Employment Agreement contain the entire agreement between the parties hereto with respect to the matters contained herein
and supersedes and replaces any prior agreement between the parties with respect to the matters set forth in this Amendment.
6. This
Amendment may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature
appears thereon, and all of which together shall constitute one and the same instrument. This Amendment shall become binding when one
or more counterparts hereof, individually or taken together, shall bear the signatures of all of the parties reflected hereon as the signatories.
Photographic copies of such signed counterparts may be used in lieu of the originals for any purpose.
[Signatures to appear on the following page]
IN WITNESS WHEREOF, the undersigned
have executed this Amendment, effective as of the date first written above.
|
EMPIRE STATE REALTY TRUST, INC. |
|
|
|
/s/ Heather L. Houston |
|
Name: Heather L. Houston |
|
Title: Senior Vice President, Chief
Counsel, Corporate & Secretary |
|
|
|
EXECUTIVE |
|
|
|
/s/ Anthony E.
Malkin |
|
Anthony E. Malkin |
[Signature Page to First Amendment to Third
Amended and Restated Employment Agreement]
Exhibit 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this
“Agreement”) dated as of December 11, 2024 (the “Effective Date”), is entered into by and between
Empire State Realty Trust, Inc., a Maryland corporation (the “Company”) and Christina Chiu (“Executive”).
W I T N E S S E T H:
WHEREAS, the Company and Executive
desire to enter into this Agreement in order for Executive to continue to serve as an employee of the Company on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration
of the promises and mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which
are mutually acknowledged, the Company and Executive hereby agree as follows:
Section 1. Definitions.
(a) “Accelerated
Equity Vesting” shall have the meaning set forth in Section 5(b)(iv) hereof.
(b) “Accounting
Firm” shall have the meaning set forth in Section 8 hereof.
(c) “Accrued
Obligations” shall mean (i) all accrued but unpaid Base Salary through the Termination Date, (ii) any unpaid or unreimbursed
expenses incurred through the Termination Date in accordance with Section 4(g) hereof through the Termination Date, (iii) any
accrued but unused vacation time through the Termination Date in accordance with the applicable Company Group policy and (iv) any
benefits provided under the Company’s employee benefit plans upon a termination of employment, in accordance with the terms contained
therein.
(d) “Agreement”
shall have the meaning set forth in the preamble hereto.
(e) “Annual
Bonus” shall have the meaning set forth in Section 4(b) hereof.
(f) “Base
Salary” shall mean the salary provided for in Section 4(a) hereof or any increased salary granted to Executive
pursuant to Section 4(a) hereof.
(g) “Board”
shall mean the Board of Directors of the Company.
(h) “Business”
shall have the meaning set forth in Section 6(c) hereof.
(i) “Cause”
shall mean (i) fraudulent actions by Executive in the conduct of her duties for the Company or the conviction of Executive of a felony,
(ii) Executive’s gross neglect of, or willful refusal or failure to perform, the duties assigned to her (other than by reason
of physical or mental incapacity), (iii) Executive’s willful and material breach of any written agreement with the Company,
where such breach results in material economic injury or reputational harm to the Company, or (iv) Executive’s willful and
material breach of the Code of Business Conduct and Ethics of the Company or any member of the Company Group (collectively, the “Company
Codes of Conduct”), where such breach results in material economic injury or reputational harm to the Company, but, in any case,
only if (A) Executive has been provided written notice of any such Company Codes of Conduct, (B) such Company Codes of Conduct
are reasonable and customary and do not include any provisions intended to specifically target Executive, and (C) such Company Codes
of Conduct are not inconsistent with (or more restrictive to Executive than) this Agreement.
(j) “Change
in Control” shall have the meaning set forth in the Empire State Realty Trust, Inc. and Empire State Realty OP, L.P.
2024 Equity Incentive Plan.
(k) “Code”
shall mean the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder.
(l) “Company”
shall have the meaning set forth in the preamble hereto.
(m) “Company
Codes of Conduct” shall have the meaning set forth in Section 1(i) hereof.
(n) “Company
Group” shall mean the Company together with any direct or indirect subsidiaries of the Company.
(o) “Compensation
Committee” shall mean the Compensation Committee of the Board.
(p) “Confidential
Information” shall have the meaning set forth in Section 6(b) hereof.
(q) “Current
Term” shall have the meaning set forth in Section 2 hereof.
(r) “Delay
Period” shall have the meaning set forth in Section 11(a) hereof.
(s) “Disability”
shall mean any physical or mental disability or infirmity of Executive that prevents the performance of Executive’s duties for a
period of (i) ninety (90) consecutive days or (ii) one hundred eighty (180) non-consecutive days during any twelve (12)
month period. Any question as to the existence, extent, or potentiality of Executive’s Disability upon which Executive and the Company
cannot agree shall be determined by a qualified, independent physician mutually agreed to by the Company and Executive. The determination
of any such physician shall be final and conclusive for all purposes of this Agreement.
(t) “Earned
Bonus” shall have the meaning set forth in Section 5(b)(ii) hereof.
(u) “Employment
Agreement” shall have the meaning set forth in the recitals hereto.
(v) “Excise
Tax” shall have the meaning set forth in Section 8 hereof.
(w) “Executive”
shall have the meaning set forth in the preamble hereto.
(x) “Good
Reason” shall mean, without Executive’s written consent, (i) a material breach by the Company of this Agreement,
any equity award agreement or any other written agreement between the Company and Executive; (ii) a diminution of, or reduction or
adverse alteration of, Executive’s titles, duties, authorities or responsibilities or reporting lines; (iii) any requirement
by the Company that Executive relocate to a principal place of business outside of the New York City metropolitan area; (iv) any
reduction in Executive’s base salary or target Annual Bonus opportunity or any failure by the Company to timely provide Executive
the compensation and benefits set forth in Section 4 hereof; (v) any request by the Company that Executive allocate more
than substantially all of Executive’s time to the Company in accordance with Section 3(b) hereof; or (vi) any
failure by the Company, following each annual review process by the Compensation Committee described in Section 4(a) hereof,
to compensate Executive at a level that is at least substantially the same as comparably titled executives of other companies that are
publicly traded REITs, the determination of which shall take into account each such company’s size, headquartered or place of business
in New York City, and the types of properties owned thereby.
(y) “JAMS”
shall have the meaning set forth in Section 16 hereof.
(z) “Partnership”
shall have the meaning set forth in the recitals hereto.
(aa) “Payment”
shall have the meaning set forth in Section 8 hereof.
(bb) “Person”
shall mean any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust
(charitable or non-charitable), unincorporated organization, or other form of business entity.
(cc) “Proceeding”
shall mean any threatened or actual action, suit or proceeding, whether civil, criminal, administrative, investigative, appellate or other.
(dd) “Pro-Rata
Bonus” shall have the meaning set forth in Section 5(b)(iii) hereof.
(ee) “Release
of Claims” shall mean the Release of Claims in the form attached hereto as Exhibit A.
(ff) “Renewal
Term” shall have the meaning set forth in Section 2 hereof.
(gg) “Restricted
Period” shall mean (i) for purposes of Section 6(c) hereof, the period commencing on the Effective Date
and ending on the one (1) year anniversary of the Termination Date and (ii) for purposes of Section 6(d) hereof,
the period commencing on the Effective Date and ending on the two (2) year anniversary of the Termination Date.
(hh) “Retention
Bonus” shall have the meaning set forth in Section 4(e) hereof.
(ii) “Safe
Harbor Amount” shall have the meaning set forth in Section 8 hereof.
(jj) “Severance
Benefits” shall have the meaning set forth in Section 5(i) hereof.
(kk) “Term”
shall have the meaning set forth in Section 2 hereof.
(ll) “Termination
Date” shall mean the date Executive’s employment with the Company terminates.
Section 2. Acceptance
and Term.
The Company agrees to employ
Executive, and Executive agrees to serve the Company, on the terms and conditions set forth herein. The Term shall commence on the Effective
Date and, unless terminated sooner as provided in Section 5 hereof, shall continue during the period ending on the close of
business of the three (3) year anniversary of the Effective Date (the “Current Term”), provided that the
Current Term shall automatically and continuously be extended and renewed, subject to earlier termination as provided in Section 5
hereof, for up to two (2) successive additional one (1) year periods (each such subsequent period, a “Renewal Term”)
unless, not later than thirty (30) days prior to the expiration of the Current Term or the first Renewal Term, as applicable, either party
provides notice to the other party that such extension shall not take effect.
Prior to the expiration of the
Current Term or the first Renewal Term, as applicable, the Company shall (i) consult Executive regarding the inclusion of any market-
and performance-related increases to compensation and benefits and any changes to other terms of this Agreement proposed by Executive
in a manner consistent with past practice and (ii) consider including any such increases and changes in its good faith discretion.
Unless otherwise expressly agreed by the parties in writing, any failure by the Company to extend the Current Term or the first Renewal
Term shall result in a termination of Executive’s employment without Cause as of the end of the Current Term or the first Renewal
Term, as applicable. The term of Executive’s employment hereunder as from time to time extended or renewed is hereafter referred
to as the “Term.”
Section 3. Position,
Duties, and Responsibilities; Place of Performance.
(a) Position,
Duties, and Responsibilities. During the Term, Executive shall be employed and serve as President of the Company. In this capacity,
Executive shall have the duties, authorities and responsibilities commensurate with the duties, authorities and responsibilities of persons
in similar capacities in similarly sized companies, and such other duties, authorities and responsibilities consistent with such positions
as may be assigned to Executive from time to time by the Chairman and Chief Executive Officer or the Board. Executive shall report directly
to the Chairman and Chief Executive Officer of the Company.
(b) Performance.
Executive shall devote substantially all of her business time, attention, skill, and efforts to the performance of her duties under this
Agreement. Notwithstanding the foregoing, nothing herein shall preclude Executive from (i) serving as a member of the board of directors
or advisory boards of any organization (or their equivalents in the case of a non-corporate entity) with the prior written consent of
the Chairman and Chief Executive Officer (provided that he will consider any request made by Executive in good faith and such consent
shall not be unreasonably withheld, delayed or conditioned), (ii) engaging in charitable, civic, educational, professional, community
or industry affairs, and (iii) managing her and her family’s personal investments; provided, however, that the
activities set out in clauses (i), (ii), and (iii) shall be limited by Executive so as not to interfere materially, individually
or in the aggregate, with the performance of her duties and responsibilities hereunder or create a potential business or fiduciary conflict.
The Company hereby acknowledges that Executive shall be entitled to serve as a board member, chair or member of any committee of any of
the organizations set forth on Exhibit B, as updated from time to time.
(c) Principal
Place of Employment. Executive’s principal place of business will be at the Company’s headquarters office located in New
York, New York, although Executive understands and agrees that she may be required to travel from time to time for business reasons. Notwithstanding
the foregoing, Executive and the Company acknowledge and agree that the foregoing shall not preclude Executive from performing her duties
hereunder at other locations from time to time.
Section 4. Compensation
and Benefits.
During the Term, Executive shall
be entitled to the following:
(a) Base
Salary. Executive shall be paid an annualized Base Salary, payable in accordance with the regular payroll practices of the Company,
of not less than $760,000, subject to annual review by the Compensation Committee for increase, but not decrease, unless Executive otherwise
agrees in writing in light of extenuating business conditions.
(b) Annual
Bonus. Executive shall be eligible for an annual cash incentive bonus award determined by the Compensation Committee in respect of
each fiscal year during the Term (the “Annual Bonus”). The target Annual Bonus for each fiscal year shall be 130% of
Base Salary, with the actual Annual Bonus payable being based upon the level of achievement of annual Company and individual performance
objectives for such fiscal year, as determined by the Compensation Committee in good faith after consultation with Executive. The Annual
Bonus shall be reasonable in light of the contribution made by Executive for such fiscal year in relation to the contributions made by
and bonuses paid to other senior executives of the Company Group and shall be paid to Executive at the same time as annual bonuses are
generally payable to other senior executives of the Company Group, but in no event later than March 15th following the end of the
fiscal year to which such Annual Bonus relates.
(c) Long-Term
Incentive Awards. Executive shall be eligible for equity grants and other long-term incentives at the same time as equity grants and
other long-term incentive awards are granted to other senior executives of the Company Group generally, subject to approval of the Compensation
Committee in its discretion. The amount of such equity grants or other long-term incentives, if any, shall be no less than that granted
to other senior executives of the Company Group and shall be reasonable in light of the contribution made by Executive in relation to
the contributions made by and long-term incentives granted to other senior executives of the Company Group and the terms and conditions
of such grants or incentives shall be no less favorable than those applicable to awards of a similar nature made to other senior executives
of the Company Group.
(d) Vacation.
Executive shall be entitled to vacation in accordance with the applicable Company Group policy, as in effect from time to time, but in
no event less than five (5) weeks of paid vacation per calendar year.
(e) Retention
Bonus. To incentivize Executive to remain employed through the Current Term, and provided Executive does not resign without Good Reason
and the Company does not terminate Executive’s employment with Cause before the end of the Current Term (i.e., December 11,
2027), the Company agrees to provide Executive with a one-time retention bonus in the amount of $750,000, less required withholdings and
taxes (the “Retention Bonus”). The Retention Bonus will be paid within thirty (30) days of the end of the Current Term;
provided, that upon a termination by Executive with Good Reason or a termination by the Company without Cause, the Retention Bonus shall
be paid within thirty (30) days following such Termination Date.
(f) Benefits.
Executive shall be eligible to participate in all employee benefit programs and perquisites, including any group insurance, hospitalization,
medical, dental, vision, health and accident, disability, life insurance, deferred compensation, fringe benefit and retirement plans of
the Company Group to the extent that she is eligible under the general provisions thereof and on a basis which is no less favorable than
is provided to other senior executives of the Company Group generally. Nothing contained herein shall be construed to limit the Company’s
ability to amend, suspend, or terminate any employee benefit program or perquisite at any time without providing Executive notice, and
the right to do so is expressly reserved.
(g) Business
Expenses. The Company shall pay or reimburse Executive for documented, out-of-pocket expenses reasonably incurred by Executive in
the course of performing her duties and responsibilities hereunder, which are consistent with the Company’s policies in effect from
time to time with respect to business expenses and the reporting of such expenses. Any payment or reimbursement will be made within thirty (30)
days after submission of written documentation substantiating such expenses, in a form reasonably acceptable to the Company.
Section 5. Termination
of Employment.
(a) General.
The Term shall terminate earlier than as provided in Section 2 hereof upon the earliest to occur of (i) Executive’s
death, (ii) a termination by reason of a Disability, (iii) a termination by the Company with or without Cause, and (iv) a
termination by Executive with or without Good Reason. Upon any termination of Executive’s employment for any reason, except as may
otherwise be requested by the Company in writing and agreed upon in writing by Executive, Executive shall resign from any and all directorships,
committee memberships, and any other positions (as applicable) Executive holds with the Company or any other member of the Company Group.
Notwithstanding anything herein to the contrary, the payment (or commencement of a series of payments) hereunder of any nonqualified deferred
compensation (within the meaning of Section 409A of the Code) upon a termination of employment shall be delayed until such time as
Executive has also undergone a “separation from service” as defined in Treas. Reg. 1.409A-1(h), at which time such nonqualified
deferred compensation (calculated as of the Termination Date) shall be paid (or commence to be paid) to Executive on the schedule set
forth in this Section 5 as if Executive had undergone such termination of employment (under the same circumstances) on the
date of her ultimate “separation from service.”
(b) Termination
Due to Death or Disability. Executive’s employment shall terminate automatically upon her death. The Company may terminate Executive’s
employment immediately upon the occurrence of a Disability, such termination to be effective upon Executive’s receipt of written
notice of such termination. Upon Executive’s death or in the event that Executive’s employment is terminated due to her Disability,
Executive or her estate or her beneficiaries, as the case may be, shall be entitled to:
(i) The
Accrued Obligations;
(ii) Any
earned but unpaid Annual Bonus with respect to any completed fiscal year that has ended prior to the Termination Date, which amount shall
be paid at such time annual bonuses are generally paid to other senior executives of the Company Group, but in no event later than March 15th
following the end of the fiscal year to which such Annual Bonus relates (“Earned Bonus”);
(iii) Subject
to achievement of the applicable performance conditions for the fiscal year of the Company in which Executive’s termination occurs
(disregarding any subjective performance goals and any other exercise by the Compensation Committee of negative discretion), payment of
the Annual Bonus that would otherwise have been earned in respect of the fiscal year in which such termination occurred, pro-rated to
reflect the number of days Executive was employed during such fiscal year, which amount shall be paid at such time annual bonuses are
generally paid to other senior executives of the Company Group, but in no event later than March 15th following the last day of the
fiscal year in which the Termination Date occurred (the “Pro-Rata Bonus”); and
(iv) Any
service-based vesting or service requirements with respect to any equity grant and other long-term incentive award previously granted
to Executive and then outstanding shall become vested and non-forfeitable as of the Termination Date and any performance-based equity
grant and other long-term incentive award previously granted to Executive and then outstanding that has not been earned as of the Termination
Date shall be earned at a pro-rata amount based on the actual performance for the performance period as of the Termination Date, and,
in other respects, such awards shall be governed by the plans, programs, agreements, or other documents, as applicable, pursuant to which
such awards were granted. The benefits provided for by this Section 5(b)(iv) are referred to as “Accelerated
Equity Vesting.”
(c) Termination
by the Company with Cause.
(i) The
Company may terminate Executive’s employment at any time with Cause, effective upon Executive’s receipt of written notice
of such termination, provided, such notice is given within one hundred eighty (180) days of the discovery of the Cause event
by the Chairman of the Audit Committee of the Board or Chairman of the Compensation Committee. Notwithstanding anything herein to the
contrary, Executive shall not be deemed to have been terminated for Cause without (A) advance written notice provided to Executive
of not less than fourteen (14) days prior to the Termination Date setting forth the Company’s intention to consider terminating
Executive for Cause including a statement of the anticipated date of termination and the basis for such termination for Cause, (B) an
opportunity for Executive, together with her counsel, to be heard before the Board during the fourteen (14) day period preceding
the anticipated date of termination, (C) a duly adopted resolution of the Board stating that the actions of Executive constituted
Cause and the basis for such termination for Cause, and (D) a written determination provided by the Board setting forth the acts
and/or omissions that form the basis of such termination for Cause. Any resolution or determination made by the Board described in the
immediately preceding sentence shall require an affirmative vote of at least a two-thirds majority of the members of the Board (other
than Executive) and shall be subject to de novo review by an arbitrator. Any purported termination of employment of Executive by
the Company which does not meet each requirement described herein shall be treated for all purposes as a termination of employment without
Cause as described in Section 5(d) hereof.
(ii) In
the event that the Company terminates Executive’s employment with Cause, she shall be entitled only to the Accrued Obligations.
(d) Termination
by the Company without Cause. The Company may terminate Executive’s employment at any time without Cause, effective upon Executive’s
receipt of written notice of such termination. In the event that Executive’s employment is terminated by the Company without Cause
(other than due to death or Disability), Executive shall be entitled to:
(i) The
Accrued Obligations;
(ii) The
Earned Bonus;
(iii) The
Pro-Rata Bonus;
(iv) The
Retention Bonus;
(v) Accelerated
Equity Vesting;
(vi) An
amount equal to two hundred percent (200%) of the sum of (x) Executive’s then-current Base Salary and (y) the average
Annual Bonus paid to Executive over the most recently completed three (3) fiscal years (or if Executive was not eligible to
receive an Annual Bonus with respect to any of the three (3) fiscal years immediately preceding the fiscal year in which the
Termination Date occurs, the average shall be determined for that period of fiscal years, if any, for which Executive was eligible to
receive an Annual Bonus), which amount shall be paid in a lump-sum on the sixtieth (60th) day following the Termination Date; and
(vii) To
the extent permitted by applicable law and without penalty to the Company, subject to Executive’s election of COBRA continuation
coverage under the Company’s group health plan, on the first regularly scheduled payroll date of each month for the eighteen (18)-month
period commencing after the Termination Date, the Company will pay Executive an amount equal to the difference between Executive’s
monthly COBRA premium cost and the premium cost to Executive as if Executive were an employee of the Company (excluding, for purposes
of calculating cost, an employee’s ability to pay premiums with pre-tax dollars); provided, that any payments described herein
shall cease in the event that Executive becomes eligible to receive health benefits from another employer that are substantially similar
to those Executive was entitled to receive immediately prior to the Termination Date.
(e) Termination
by Executive with Good Reason. Executive may terminate her employment with Good Reason by providing the Company thirty (30) days’
written notice setting forth in reasonable specificity the event that constitutes Good Reason, which written notice, to be effective,
must be provided to the Company within ninety (90) days of the occurrence of such event. During such thirty (30) day notice
period, the Company shall have a cure right (if curable), and if not cured within such period, Executive’s termination will be effective
upon expiration of such cure period, and Executive shall be entitled to the same payments and benefits as provided in Section 5(d) hereof
for a termination by the Company without Cause, subject to the same conditions on payment and benefits as described in Section 5(d) hereof.
(f) Termination
by Executive without Good Reason. Executive may terminate her employment without Good Reason by providing the Company thirty (30)
days’ written notice of such termination. In the event of a termination of employment by Executive under this Section 5(f),
Executive shall be entitled only to the Accrued Obligations and the Earned Bonus. In the event of termination of Executive’s employment
under this Section 5(f), the Company may, in its sole and absolute discretion, by written notice accelerate such date of termination
without changing the characterization of such termination as a termination by Executive without Good Reason.
(g) Termination
following a Change in Control. Notwithstanding anything herein to the contrary, in the event that Executive’s employment is
terminated by the Company without Cause (other than due to death or Disability) or by Executive with Good Reason, in either case, during
the two (2) year period commencing on the date of a Change in Control, Executive shall be entitled to the same payments and
benefits as provided in Section 5(d) hereof for a termination by the Company without Cause, subject to the same conditions
on payment and benefits as described in Section 5(d) hereof, except that (i) for purposes of the Accelerated Equity
Vesting provided pursuant to Section 5(d)(v), any performance-based equity grant and other long-term incentive award previously
granted to Executive and then outstanding that has not been earned as of the Termination Date shall be earned (without proration) based
on the actual performance for the performance period as of the Termination Date and (ii) for purposes of the payment pursuant to
Section 5(d)(vi), the applicable percentage shall be three hundred percent (300%).
(h) Employment
following Expiration of the Term. If Executive’s employment with the Company continues beyond the expiration of the Term, Executive
shall be considered an “at will” employee and shall not be entitled to any payments or benefits under this Agreement upon
any subsequent termination of employment for any reason whatsoever. For the sake of clarity, the Restricted Period shall automatically
expire on the expiration of the Term if Executive’s employment with the Company continues beyond the expiration of the Term.
(i) Release.
Notwithstanding any provision herein to the contrary, the payment of any amount or provision of any benefit pursuant to subsection (b),
(d), (e), (f) or (g) of this Section 5 (other than the Accrued Obligations) (collectively,
the “Severance Benefits”) shall be conditioned upon Executive’s execution, delivery to the Company, and non-revocation
of the Release of Claims (and the expiration of any revocation period contained in such Release of Claims) within sixty (60) days
following the Termination Date. If Executive fails to execute the Release of Claims in such a timely manner so as to permit any revocation
period to expire prior to the end of such sixty (60) day period, or timely revokes her acceptance of such release following its execution,
Executive shall not be entitled to any of the Severance Benefits. Further, to the extent that any of the Severance Benefits constitutes
“nonqualified deferred compensation” for purposes of Section 409A of the Code, any payment of any amount or provision
of any benefit otherwise scheduled to occur prior to the sixtieth (60th) day following the Termination Date, but for the condition
on executing the Release of Claims as set forth herein, shall not be made until the first regularly scheduled payroll date following such
sixtieth (60th) day, after which any remaining Severance Benefits shall thereafter be provided to Executive according to the applicable
schedule set forth herein. For the avoidance of doubt, in the event of a termination due to Executive’s death or Disability, Executive’s
obligations herein to execute and not revoke the Release of Claims may be satisfied on her behalf by her estate or a person having legal
power of attorney over her affairs.
Section 6. Restrictive
Covenants.
(a) General.
Executive acknowledges and agrees that (i) the agreements and covenants contained in this Section 6 are (A) reasonable
and valid in geographical and temporal scope and in all other respects and (B) essential to protect the value of the Company Group’s
business and assets, and (ii) by her employment with the Company, Executive will obtain knowledge, contacts, know-how, training,
and experience, and there is a substantial probability that such knowledge, know-how, contacts, training, and experience could be used
to the substantial advantage of a competitor of the Company Group and to the Company Group’s substantial detriment.
(b) Confidential
Information. Except as directed or authorized by the Company, Executive agrees that she will not, at any time during or after the
Term, make use of or divulge to any other Person any trade or business secret, process, method, or means, or any other confidential information
concerning the business or policies of the Company Group that she may have learned in connection with her employment hereunder and that
she knows to be confidential or proprietary (“Confidential Information”). Executive’s obligation under this Section 6(b) shall
not apply to any information that (i) is known publicly without the fault of Executive, (ii) is in the public domain or hereafter
enters the public domain without the fault of Executive, or (iii) is required to be disclosed by Executive to, or by, any governmental
or judicial authority (provided that Executive provides the Company Group with prior notice of the contemplated disclosure and
reasonably cooperates with the Company Group at its expense in seeking a protective order or other appropriate protection of such information).
Executive agrees not to remove from the premises of any member of the Company Group, except as an employee, officer or director of the
Company Group in pursuit of the business of the Company Group or except as specifically permitted in writing by the Board, any document
or other object containing or reflecting any such Confidential Information. Executive recognizes that all such documents and objects,
whether developed by her or by someone else, will be the sole exclusive property of the Company Group. Upon termination of her employment
hereunder, Executive shall forthwith deliver to the Company Group all such Confidential Information, including, without limitation, all
lists of customers, correspondence, accounts, records, and any other documents or property made or held by her or under her control in
relation to the business or affairs of the Company Group, and no copy of any such Confidential Information shall be retained by her.
(c) Non-Competition.
Executive covenants and agrees that during the Restricted Period, Executive shall not, directly or indirectly (individually, or through
or on behalf of another entity as owner, partner, agent, employee, consultant, or in any other capacity), engage, participate or assist,
as an owner, partner, employee, consultant, director, officer, trustee or agent in any element of the Business (as defined below) (other
than in connection with Executive’s services to, and ownership interests in, the Company Group); provided, however, the foregoing
restrictions shall not prohibit Executive from (x) engaging in any activities permitted under Section 3(b), (y) acquiring
as an investment securities representing not more than one percent (1%) of the outstanding voting securities of any publicly held
corporation engaged in the Business or from indirectly acquiring securities of any company engaged in the Business as a result of being
a passive investor in any mutual fund, hedge fund, private equity fund, or similar pooled account so long as Executive’s interest
therein is less than one percent (1%) and she has no role in selecting, managing or advising with respect to investments thereof,
or (z) providing services to a subsidiary, division or unit of any entity that engages in the Business so long as Executive and such
subsidiary, division or unit does not engage in the Business so long as Executive provides written notice to the Company at least ten (10) business
days prior to the commencement of providing any services to such subsidiary, division or unit. For the purposes of this Section 6(c),
the “Business” shall mean the acquisition, development, management, leasing or financing of any office, retail or multifamily
real estate property located in New York County, New York, Fairfield County, Connecticut, Westchester County, New York, and any other
product type and/or geographic area in which the Company engages in such activities and any business activity that represents a significant
portion of the business activity of the Company (measured as at least ten percent (10%) of the Company’s revenues on a trailing
12-month basis); provided, however, that (i) if Executive is directly or indirectly engaged in any business activity before the Company
engages in such business activity, Executive and the Company shall negotiate in good faith to resolve such conflict prior to the Company
treating such conflict as a violation of this Section 6(c) and (ii) Executive shall not be permitted to commence
any new business activity if the Company previously engaged in such activity regardless of whether the revenues from such activity exceeds
the ten percent (10%) threshold.
(d) Non-Interference.
During the Restricted Period, Executive shall not, directly or indirectly, for her own account or for the account of any other Person,
(i) encourage, solicit or induce, or in any manner attempt to encourage, solicit or induce, any Person employed by, or providing
consulting services to the Company Group to terminate such Person’s employment or services (or, in the case of a consultant, to
materially reduce such services) with the Company Group, or (ii) hire any Person who was employed by the Company Group within the
twelve (12) month period prior to the date of such hiring.
(e) Mutual
Non-Disparagement. During the Term and at all times following Executive’s termination of employment for any reason, (i) Executive
covenants and agrees that she will not, nor induce others to, disparage any member of the Company Group, its past and present officers,
directors, employees, products or services and (ii) the Company shall not, and shall instruct members of the Company’s Board
and the executives of the Company Group not to, disparage Executive. Nothing herein shall prohibit any party (i) from disclosing
that Executive is no longer employed by the Company, (ii) from responding truthfully to any governmental investigation, legal process
or inquiry related thereto, (iii) from making a good faith rebuttal of the other party’s untrue or misleading statement, or
(iv) from engaging in internal conversations in good faith which are required to perform their fiduciary duties to the Company. For
purposes of this Agreement, the term “disparage” means any statements, whether orally, in writing or through any medium (including,
but not limited to, the press or other media, computer networks or bulletin boards, or any other form of communication), that intentionally
disparage, defame, or otherwise damage or assail the reputation, integrity or professionalism of the other party.
(f) Post-Termination
Cooperation. Executive agrees that following the termination of her employment, she will continue to provide reasonable cooperation
to the Company and/or any other member of the Company Group and its or their respective counsel in connection with any Proceeding relating
to any matter that occurred during Executive’s employment in which Executive was involved or of which Executive has knowledge. The
Company shall pay Executive at an hourly rate based upon Executive’s Base Salary as of the Termination Date and reimburse Executive
for reasonable out-of-pocket expenses incurred with respect to her compliance with this Section 6(f). Executive also agrees
that, in the event that she is subpoenaed by any Person (including, but not limited to, any government agency) to give testimony or provide
documents (in a deposition, court proceeding, or otherwise) that in any way relates to her employment by the Company and/or any other
member of the Company Group, she will give prompt notice of such request to the Company and will make no disclosure until the Company
Group has had a reasonable opportunity to contest the right of the requesting Person. Without limiting the generality of the foregoing,
to the extent any member of the Company Group seeks Executive’s assistance, the Company Group will use reasonable commercial efforts,
whenever possible, to provide her with reasonable advance notice of its need for her and will attempt to coordinate with her the time
and place at which her assistance will be provided with the goal of minimizing the impact of such assistance on any other material pre-scheduled
business commitment that Executive may have. Executive’s cooperation described in this Section 6(f) shall be subject
to the maintenance of the indemnification and directors’ and officers’ liability insurance policy described in Section 18
hereof.
(g) Blue
Pencil. If any court of competent jurisdiction shall at any time deem the duration or the geographic scope of any of the provisions
of this Section 6 unenforceable, the other provisions of this Section 6 shall nevertheless stand, and the duration
and/or geographic scope set forth herein shall be deemed to be the longest period and/or greatest size permissible by law under the circumstances,
and the parties hereto agree that such court shall reduce the time period and/or geographic scope to permissible duration or size.
(h) Breach
of Restrictive Covenants by Executive. Without limiting the remedies available to the Company Group, Executive acknowledges that a
breach by Executive of any of the covenants contained in Section 6 hereof may result in material irreparable injury to the
Company Group for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely,
and that in the event of such a breach or threat thereof, the Company Group shall be entitled to obtain a temporary restraining order
and/or a preliminary or permanent injunction, without the necessity of proving irreparable harm or injury as a result of such breach or
threatened breach of Section 6 hereof, restraining Executive from engaging in activities prohibited by Section 6
hereof or such other relief as may be required specifically to enforce any of the covenants in Section 6 hereof.
(i) Breach
of Restrictive Covenants by Company. Without limiting the remedies available to Executive, the Company acknowledges that a breach
by the Company of the covenant contained in Section 6(e) may result in material irreparable injury to Executive for which
there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely, and that in the event
of such a breach or threat thereof, Executive shall be entitled to obtain a temporary restraining order and/or a preliminary or permanent
injunction, without the necessity of proving irreparable harm or injury as a result of such breach or threatened breach of Section 6(e) hereof,
restraining the Company from engaging in activities prohibited by Section 6(e) hereof or such other relief as may be
required specifically to enforce any of the covenants in Section 6(e) hereof.
Section 7. Representations
and Warranties of Executive.
Executive represents and warrants
to the Company that-
(a) Executive
is entering into this Agreement voluntarily and that her employment hereunder and compliance with the terms and conditions hereof will
not (i) create any gap or discontinuity in her currently continuing employment at the Company or (ii) conflict with or result
in the breach by her of any agreement to which she is a party or by which she may be bound;
(b) Executive
has not violated, and in connection with her employment with the Company will not violate, any non-solicitation, non-competition, or other
similar covenant or agreement of a prior employer by which she is or may be bound; and
(c) in
connection with her employment with the Company, Executive will not use any confidential or proprietary information she may have obtained
in connection with employment with any prior employer.
Section 8. Golden
Parachute Tax Provisions.
If there is a change in ownership
or control of the Company that would cause any payment or distribution by the Company or any other Person or entity to Executive or for
Executive’s benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise)
(a “Payment”) to be subject to the excise tax imposed by Section 4999 of the Code (such excise tax, together with
any interest or penalties incurred by Executive with respect to such excise tax, the “Excise Tax”), then Executive
will receive the greatest of the following, whichever gives Executive the highest net after-tax amount (after taking into account federal,
state, local and social security taxes): (a) the Payments or (b) one dollar less than the amount of the Payments that would
subject Executive to the Excise Tax (the “Safe Harbor Amount”). If a reduction in the Payments is necessary so that
the Payments equal the Safe Harbor Amount and none of the Payments constitutes nonqualified deferred compensation (within the meaning
of Section 409A of the Code), then the reduction shall occur in the manner Executive elects in writing prior to the date of payment.
If any Payment constitutes nonqualified deferred compensation or if Executive fails to elect an order, then the Payments to be reduced
will be determined in a manner which has the least economic cost to Executive and, to the extent the economic cost is equivalent, will
be reduced in the inverse order of when payment would have been made to Executive, until the reduction is achieved. All determinations
required to be made under this Section 8, including whether and when the Safe Harbor Amount is required and the amount of
the reduction of the Payments and the assumptions to be utilized in arriving at such determination, shall be made by a certified public
accounting firm designated by the Company (the “Accounting Firm”). All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon Company and Executive.
Section 9. Taxes.
The Company may withhold from
any payments made under this Agreement all applicable taxes, including but not limited to income, employment, and social insurance taxes,
as shall be required by law. Executive acknowledges and represents that the Company has not provided any tax advice to her in connection
with this Agreement and that she has been advised by the Company to seek tax advice from her own tax advisors regarding this Agreement
and payments that may be made to her pursuant to this Agreement, including specifically, the application of the provisions of Section 409A
of the Code to such payments.
Section 10. Set
Off; Mitigation.
The Company’s obligation
to pay Executive the amounts provided and to make the arrangements provided hereunder shall not be subject to set-off, counterclaim, or
recoupment of amounts owed by Executive to the Company or its affiliates. Executive shall not be required to mitigate the amount of any
payment provided pursuant to this Agreement by seeking other employment or otherwise, and except as provided in Section 5(d)(vii),
the amount of any payment provided for pursuant to this Agreement shall not be reduced by any compensation earned as a result of Executive’s
other employment or otherwise.
Section 11. Additional
Section 409A Provisions.
Notwithstanding any provision
in this Agreement to the contrary-
(a) Any
payment otherwise required to be made hereunder to Executive at any date as a result of the termination of Executive’s employment
shall be delayed for such period of time as may be necessary to meet the requirements of Section 409A(a)(2)(B)(i) of the Code
(the “Delay Period”). On the first business day following the expiration of the Delay Period, Executive shall be paid,
in a single cash lump sum, an amount equal to the aggregate amount of all payments delayed pursuant to the preceding sentence, and any
remaining payments not so delayed shall continue to be paid pursuant to the payment schedule set forth herein.
(b) Each
payment in a series of payments hereunder shall be deemed to be a separate payment for purposes of Section 409A of the Code.
(c) To
the extent that any right to reimbursement of expenses or payment of any benefit in-kind under this Agreement constitutes nonqualified
deferred compensation (within the meaning of Section 409A of the Code), (i) any such expense reimbursement shall be made by
the Company no later than the last day of the taxable year following the taxable year in which such expense was incurred by Executive,
(ii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (iii) the
amount of expenses eligible for reimbursement or in-kind benefits provided during any taxable year shall not affect the expenses eligible
for reimbursement or in-kind benefits to be provided in any other taxable year; provided, that the foregoing clause shall not be
violated with regard to expenses reimbursed under any arrangement covered by Section 105(b) of the Code solely because such
expenses are subject to a limit related to the period the arrangement is in effect.
(d) The
intent of the parties is that payments and benefits under this Agreement comply with, or be exempt from, Section 409A of the Code
and the regulations and guidance promulgated thereunder and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted
to be in accordance with such intent.
Section 12. Successors
and Assigns; No Third-Party Beneficiaries.
(a) The
Company. This Agreement shall inure to the benefit of the Company and its respective successors and assigns. Neither this Agreement
nor any of the rights, obligations, or interests arising hereunder may be assigned by the Company to a Person (other than another member
of the Company Group, or its or their respective successors) without Executive’s prior written consent (which shall not be unreasonably
withheld, delayed, or conditioned); provided, however, that in the event of a sale of all or substantially all of the assets
of the Company or any direct or indirect division or subsidiary thereof to which Executive’s employment primarily relates, the Company
will provide that this Agreement will be assigned to, and assumed by, the acquiror of such assets, it being agreed that in such circumstances,
Executive’s consent will not be required in connection therewith.
(b) Executive.
Executive’s rights and obligations under this Agreement shall not be transferable by Executive by assignment or otherwise, without
the prior written consent of the Company; provided, however, that if Executive shall die, all amounts then payable to Executive
hereunder shall be paid in accordance with the terms of this Agreement to Executive’s devisee, legatee, or other designee, or if
there be no such designee, to Executive’s estate.
(c) No
Third-Party Beneficiaries. Except as otherwise set forth in Section 5(b) or Section 12(b) hereof,
nothing expressed or referred to in this Agreement will be construed to give any Person other than the Company, the other members of the
Company Group, and Executive any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of
this Agreement.
Section 13. Waiver
and Amendments.
Any waiver, alteration, amendment,
or modification of any of the terms of this Agreement shall be valid only if made in writing and signed by each of the parties hereto;
provided, however, that any such waiver, alteration, amendment, or modification must be consented to on the Company’s
behalf by the Board. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect
to any subsequent occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing
waiver.
Section 14. Severability.
If any covenants or such other
provisions of this Agreement are found to be invalid or unenforceable by a final determination of a court of competent jurisdiction, (a) the
remaining terms and provisions hereof shall be unimpaired, and (b) the invalid or unenforceable term or provision hereof shall be
deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid
or unenforceable term or provision hereof.
Section 15. Governing
Law; Interpretation.
This Agreement shall be construed
in accordance with and governed for all purposes by the laws and public policy (other than conflict of laws principles) of the State of
New York applicable to contracts executed and to be wholly performed therein.
Section 16. Dispute
Resolution.
Except to the extent necessary
for the Company or any member of the Company Group or their successors or assigns to seek injunctive relief or other equitable relief
described in Section 6(h), arbitration will be the method of resolving disputes under this Agreement. Notwithstanding the
foregoing, the parties agree that before proceeding to arbitration, they will attempt in good faith to promptly resolve such dispute by
mediation in New York, New York. The mediation will commence within forty-five (45) days of request therefore and will be before
a single mediator selected by the Company and Executive from a list provided by Judicial Arbitration and Mediation Services, Inc.
(“JAMS”). If the parties are unable to mutually select a mediator, then the mediator shall be appointed by JAMS. If
any dispute is not resolved to the satisfaction of the parties in mediation or, unless the parties mutually agree otherwise, the dispute
remains unresolved following thirty (30) days after the commencement of the mediation, the arbitration shall be held before a single
arbitrator selected by the Company and Executive from a list provided by JAMS. All arbitrations arising out of this Agreement shall be
conducted in New York, New York in accordance with the JAMS rules then in effect for executive employment disputes and arbitrations.
If the Company and Executive cannot agree on a single arbitrator, the arbitration shall be conducted before a panel of three arbitrators,
one selected by each party hereto and the third arbitrator selected by the parties’ two arbitrators from a list provided by JAMS.
Any award entered by the arbitrator shall be final, binding and nonappealable and judgment may be entered thereon by either party in accordance
with applicable law in any court of competent jurisdiction. This arbitration provision shall be specifically enforceable. The arbitrators
shall have no authority to modify any provision of this Agreement or to award a remedy for a dispute involving this Agreement other than
a benefit specifically provided under or by virtue of this Agreement. The Company shall be responsible for paying the fees and costs of
the mediator and arbitrator along with other mediation or arbitration-specific fees (except, if applicable, Executive’s petitioner’s
filing fees) and its own expenses and Executive shall be responsible for her own expenses relating to the conduct of the mediation or
arbitration (including reasonable attorneys’ fees and expenses), provided, however, the Company shall reimburse Executive
for her costs and expenses in connection with such contest or dispute in the event Executive prevails, as determined by the arbitrator.
Section 17. Legal
Fees.
The Company will promptly pay
or reimburse Executive for all documented legal fees and related expenses incurred in connection with the drafting, negotiation, and execution
of this Agreement and any other documents and agreements entered into by her in connection herewith. In the event Executive prevails in
an action to enforce Executive’s rights under this Agreement, the Company agrees to pay Executive’s documented legal fees.
Section 18. Indemnification;
Liability Insurance.
(a) In
the event that Executive is made a party or threatened to be made a party to any Proceeding, other than any Proceeding initiated by Executive
or the Company related to any contest or dispute between Executive and the Company or any member of the Company Group with respect to
this Agreement or Executive’s employment hereunder, by reason of the fact that Executive is or was a director or officer of the
Company or any member of the Company Group, or is or was serving at the request of the Company as a director, officer, member, employee
or agent of another corporation or a partnership, joint venture, trust or other enterprise, Executive shall be indemnified and held harmless
by the Company to the fullest extent permitted by applicable law from and against all liabilities, costs, claims and expenses, including
all costs and expenses incurred in defense of any Proceeding (including attorneys’ fees). To the fullest extent permitted by law,
costs and expenses incurred by Executive in defense of such Proceeding (including attorneys’ fees) shall be paid by the Company
in advance of the final disposition of such litigation upon receipt by the Company of: (i) a written request for payment; (ii) appropriate
documentation evidencing the incurrence, amount and nature of the costs and expenses for which payment is being sought; and (iii) an
undertaking adequate under applicable law made by or on behalf of Executive to repay the amounts so paid if it shall ultimately be determined
than Executive is not entitled to be indemnified by the Company under this Agreement. The provisions of this Section 18(a) shall
in no way limit, and shall be in addition to, Executive’s rights to indemnification and advancement of expenses provided under the
Company’s by-laws.
(b) During
the Term and, while potential liability exists, thereafter, the Company or its successor shall purchase and maintain, at its own expense,
directors’ and officers’ liability insurance providing coverage to Executive on terms that are no less favorable than the
coverage provided to directors and senior executives of the Company Group.
Section 19. Notices.
(a) Place
of Delivery. Every notice or other communication relating to this Agreement shall be in writing, and shall be mailed to or delivered
to the party for whom or which it is intended at such address as may from time to time be designated by it in a notice mailed or delivered
to the other party as herein provided; provided, that unless and until some other address be so designated, all notices and communications
by Executive to the Company shall be mailed or delivered to the Company at its principal executive office, and all notices and communications
by the Company to Executive may be given to Executive personally or may be mailed to Executive at Executive’s last known address,
as reflected in the Company’s records.
(b) Date
of Delivery. Any notice so addressed shall be deemed to be given or received (i) if delivered by hand, on the date of such delivery,
(ii) if mailed by courier or by overnight mail, on the first business day following the date of such mailing, and (iii) if mailed
by registered or certified mail, on the third business day after the date of such mailing.
Section 20. Section Headings.
The headings of the sections
and subsections of this Agreement are inserted for convenience only and shall not be deemed to constitute a part thereof or affect the
meaning or interpretation of this Agreement or of any term or provision hereof.
Section 21. Entire
Agreement.
This Agreement constitutes the
entire understanding and agreement of the parties hereto regarding the employment of Executive. This Agreement supersedes all prior negotiations,
discussions, correspondence, communications, understandings, and agreements between the parties relating to the subject matter of this
Agreement, including the Change in Control Severance Agreement by and between the Executive and the Company, dated as of April 13,
2020.
Section 22. Survival
of Operative Sections.
Upon any termination of Executive’s
employment, the provisions of Section 5 through 23 of this Agreement (together with any related definitions set forth
in Section 1 hereof) shall survive to the extent necessary to give effect to the provisions thereof.
Section 23. Counterparts.
This Agreement may be executed
in two or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same
instrument. The execution of this Agreement may be by actual signature or by signature delivered by facsimile or by e-mail as a portable
data format (.pdf) file or image file attachment.
* * *
[Signatures to appear on the following page.]
IN WITNESS WHEREOF, the undersigned
have executed this Agreement as of the date first above written.
|
EMPIRE STATE REALTY TRUST, INC. |
|
|
|
By: |
/s/ Heather L. Houston |
|
Name: Heather L. Houston |
|
Title: Senior Vice President, Chief
Counsel, Corporate & Secretary |
|
|
|
EXECUTIVE |
|
|
|
/s/
Christina Chiu |
|
Christina Chiu |
Exhibit A
RELEASE OF CLAIMS
This General Release of Claims
(this “Release”), dated as of _______, 20__, confirms the following understandings and agreements between Empire
State Realty Trust, Inc., a Maryland corporation, (the “Company”) and Christina Chiu (hereinafter referred
to as “you” or “your”).
In consideration of the promises
set forth in that certain employment agreement between you and the Company, dated as of [●], 2024 (the “Employment Agreement”),
as well as any promises set forth in this Release, you and the Company agree as follows:
Section 1. Opportunity
for Review and Revocation. You have [twenty-one (21)][forty-five (45)]1
days to review and consider this Release. Notwithstanding anything contained herein to the contrary, this Release will not become effective
or enforceable for a period of seven (7) calendar days following the date of its execution, during which time you may revoke
your acceptance of this Release by notifying __________________, in writing. To be effective, such revocation must be received by the
Company no later than 5:00 p.m. on the seventh calendar day following its execution. Provided that this Release is executed and you
do not revoke it, the eighth (8th) day following the date on which this Release is executed shall be its effective date (the “Effective
Date”). In the event of your revocation of this Release pursuant to this Section 1, this Release will be null
and void and of no effect, and the Company will have no obligations hereunder.
Section 2. Employee
Release and Waiver of Claims.
(a) As
used in this Release, the term “claims” will include all claims, covenants, warranties, promises, undertakings, actions, suits,
causes of action, obligations, debts, accounts, attorneys’ fees, judgments, losses and liabilities, of whatsoever kind or nature,
in law, in equity, or otherwise.
(b) For
and in consideration of the Severance Benefits (as defined in the Employment Agreement), and other good and valuable consideration, you,
for and on behalf of yourself and your heirs, administrators, executors, and assigns, effective as of the Effective Date, do fully and
forever release, remise, and discharge the Company, its direct and indirect parents, subsidiaries and affiliates, and their respective
successors and assigns, together with their respective officers, directors, partners, stockholders, employees, and agents (collectively,
the “Group”), from any and all claims whatsoever up to the date hereof which you had, may have had, or now have
against the Group, whether known or unknown, for or by reason of any matter, cause or thing whatsoever, including any claim arising out
of or attributable to your employment or the termination of your employment with the Company, whether for tort, breach of express or implied
employment contract, intentional infliction of emotional distress, wrongful termination, unjust dismissal, defamation, libel or slander,
or under any federal, state or local law dealing with discrimination based on age, race, sex, national origin, handicap, religion, disability
or sexual orientation. This release of claims includes, but is not limited to, all claims arising under the Age Discrimination in Employment
Act (“ADEA”), Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Civil Rights
Act of 1991, the Family Medical Leave Act, and the Equal Pay Act, each as may be amended from time to time, and all other federal, state
and local laws, the common law and any other purported restriction on an employer’s right to terminate the employment of employees.
1 To be selected based on whether the applicable termination
was “in connection with an exit incentive or other employment termination program” (as such phrase is defined in the Age
Discrimination in Employment Act of 1967).
(c) You
acknowledge and agree that as of the date you execute this Release, you have no knowledge of any facts or circumstances that give rise
or could give rise to any claims under any of the laws listed in the preceding paragraph.
(d) You
specifically release all claims relating to your employment and its termination under ADEA, a United States federal statute that, among
other things, prohibits discrimination on the basis of age in employment and employee benefit plans.
(e) Notwithstanding
any provision of this Release to the contrary, by executing this Release, you are not releasing any claims relating to: (i) your
rights with respect to the Severance Benefits and any other rights under your Employment Agreement or any other written agreement by and
between you and the Company that survive the termination of your employment; (ii) any rights to accrued, vested benefits that you
have under the employee benefit and fringe benefit plans, programs and arrangements of the Group; (iii) any claims that cannot be
waived by law and any claims that may arise after the date on which you sign this Release; (iv) any rights that you have as a stockholder
of the Company or an equity holder of any member of the Group; (v) any indemnification rights (including advancement and reimbursement
of legal fees and expenses) you may have as a former officer or director of the Company or its subsidiaries or affiliates or coverage
under directors and officers liability insurance; or (vi) a breach of this Release by the Company.
Section 3. Knowing
and Voluntary Waiver. You expressly acknowledge and agree that you:
(a) Are
able to read the language, and understand the meaning and effect, of this Release;
(b) Have
no physical or mental impairment of any kind that has interfered with your ability to read and understand the meaning of this Release
or its terms, and that you’re not acting under the influence of any medication, drug, or chemical of any type in entering into this
Release;
(c) Are
specifically agreeing to the terms of the release contained in this Release because the Company has agreed to pay you the Severance Benefits
in consideration for your agreement to accept it in full settlement of all possible claims you might have or ever have had, and because
of your execution of this Release;
(d) Acknowledge
that, but for your execution of this Release, you would not be entitled to the Severance Benefits;
(e) Understand
that, by entering into this Release, you do not waive rights or claims under ADEA that may arise after the date you execute this Release;
(f) Had
or could have had [twenty-one (21)][forty-five (45)] days from the date of your termination of employment (the “Release
Expiration Date”) in which to review and consider this Release and that if I execute this Release prior to the Release Expiration
Date, you have voluntarily and knowingly waived the remainder of the review period;
(g) Have
not relied upon any representation or statement not set forth in this Release or the Employment Agreement made by the Company or any of
its representatives;
(h) Were
advised to consult with your attorney regarding the terms and effect of this Release; and
(i) Have
signed this Release knowingly and voluntarily.
Section 4. No
Suit. You represent and warrant that you have not previously filed, and to the maximum extent permitted by law agree that you will
not file, a complaint, charge, or lawsuit against any member of the Group regarding any of the claims released herein. If, notwithstanding
this representation and warranty, you have filed or file such a complaint, charge, or lawsuit, you agree that you shall cause such complaint,
charge, or lawsuit to be dismissed with prejudice and you shall pay any and all costs required in obtaining a dismissal of such complaint,
charge, or lawsuit, including without limitation the attorneys’ fees of any member of the Group against whom I have filed such a
complaint, charge, or lawsuit. This paragraph shall not apply, however, to a claim of age discrimination under ADEA or to any non-waivable
right to file a charge with the United States Equal Employment Opportunity Commission (the “EEOC”); provided,
however, that if the EEOC were to pursue any claims relating to your employment with the Company, you agree that you shall not
be entitled to recover any monetary damages or any other remedies or benefits as a result and that this Release and Section 5 of
the Employment Agreement will control as the exclusive remedy and full settlement of all such claims by you. You hereby agree to waive
any and all claims to re-employment with the Company or any other member of the Group and affirmatively agree not to seek further employment
with the Company or any other member of the Group.
Section 5. Company
Release and Waiver of Claims.
(a) For
and in consideration of the promises set forth in Section 6 of the Employment Agreement and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Company, effective as of the Effective Date, fully and forever releases,
remises and discharges you, together with your heirs, administrators, executors and assigns (you and each such person, an “Employee
Releasee”, and collectively, the “Employee Releasees”) from any and all claims which the
Company and its direct and indirect parents, subsidiaries and affiliates has against you whatsoever up to the date hereof. Notwithstanding
the foregoing, this Section 5 shall not apply with respect to (i) any rights or claims that the Company may have for
a breach of the Release by you, (ii) any claims that are based on fraud, embezzlement or material and willful misconduct while employed
as an employee of the Company or while serving as an officer or director of the Company, to the extent based on facts which are not known
to the Group as of the date hereof, or (iii) any claims that may arise after the date on which this Release is signed on behalf of
the Company. For purposes of the preceding sentence, no act of yours shall be considered willful if you believed in good faith that such
act was in the best interests of the Company or the Group.
(b) The
Company represents and warrants that the Company has not filed, commenced or participated in any way in any complaints, claims, actions
or proceedings of any kind against you with any federal, state or local court or any administrative, regulatory or arbitration agency
or body and the Company agrees not to file, assert or commence any complaint, claim, action or proceeding against any Employee Releasee
with any federal, state or local court or any administrative, regulatory or arbitration agency or body with respect to any matter from
the beginning of the world to the date hereof. The Company acknowledges and agrees that as of the Effective Date, it has no knowledge
of any facts or circumstances that give rise or could give rise to any claims against you.
Section 6. Successors
and Assigns. The provisions hereof shall inure to the benefit of your heirs, executors, administrators, legal personal representatives
and assigns and shall be binding upon your heirs, executors, administrators, legal personal representatives and assigns.
Section 7. Severability.
If any provision of this Release shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision
shall be of no force and effect. The illegality or unenforceability of such provision, however, shall have no effect upon and shall not
impair the enforceability of any other provision of this Release.
Section 8. Non-Admission.
Nothing contained in this Release will be deemed or construed as an admission of wrongdoing or liability on the part of you or the Company.
Section 9. Governing
Law. This Release shall be governed by and construed in accordance with Federal law and the laws of the State of New York, applicable
to releases made and to be performed in that State.
Section 10. Dispute
Resolution. Arbitration will be the method of resolving disputes under this Release. Notwithstanding the foregoing, the parties agree
that before proceeding to arbitration, they will attempt in good faith to promptly resolve such dispute by mediation in New York, New
York. The mediation will commence within forty-five (45) days of request therefore and will be before a single mediator selected
by the Company and you from a list provided by Judicial Arbitration and Mediation Services, Inc. (“JAMS”). If
the parties are unable to mutually select a mediator, then the mediator shall be appointed by JAMS. If any dispute is not resolved to
the satisfaction of the parties in mediation or, unless the parties mutually agree otherwise, the dispute remains unresolved following
thirty (30) days after the commencement of the mediation, the arbitration shall be held before a single arbitrator selected by the
Company and you from a list provided by JAMS. All arbitrations arising out of this Release shall be conducted in New York, New York in
accordance with the JAMS rules then in effect for executive employment disputes and arbitrations. If the Company and you cannot agree
on a single arbitrator, the arbitration shall be conducted before a panel of three arbitrators, one selected by each party hereto and
the third arbitrator selected by the parties’ two arbitrators from a list provided by JAMS. Any award entered by the arbitrator
shall be final, binding and nonappealable and judgment may be entered thereon by either party in accordance with applicable law in any
court of competent jurisdiction. This arbitration provision shall be specifically enforceable. The arbitrators shall have no authority
to modify any provision of this Release or to award a remedy for a dispute involving this Release other than a benefit specifically provided
under or by virtue of this Release. The Company shall be responsible for paying the fees and costs of the mediator and arbitrator along
with other mediation or arbitration-specific fees (except, if applicable, your petitioner’s filing fees) and its own expenses and
you shall be responsible for your own expenses relating to the conduct of the mediation or arbitration (including reasonable attorneys’
fees and expenses), provided, however, the Company shall reimburse you for your costs and expenses in connection with such contest
or dispute in the event you prevail, as determined by the arbitrator.
IN WITNESS WHEREOF, the parties
hereto have executed this Release as of the date first written above.
|
EMPIRE STATE REALTY TRUST, INC. |
|
|
|
|
|
By: |
|
Name: |
|
Title: |
|
|
|
|
|
CHRISTINA CHIU |
Exhibit B
PERMITTED OUTSIDE SERVICE
| 1. | American Red Cross – National Board of Governors |
| 2. | NYU Stern School of Business – Chen Institute of Real Estate |
| 3. | University Settlement Society of New York |
v3.24.3
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|
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EMPIRE STATE REALTY TRUST, INC.
|
Entity Central Index Key |
0001541401
|
Entity Tax Identification Number |
37-1645259
|
Entity Incorporation, State or Country Code |
MD
|
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|
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Empire State Realty (NYSE:ESRT)
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De Nov 2024 até Dez 2024
Empire State Realty (NYSE:ESRT)
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De Dez 2023 até Dez 2024