**Exhibit10.01**

 

**EMPLOYMENTAGREEMENT**

 

This EMPLOYMENTAGREEMENT (the “Agreement”), dated as of October 15, 2001, is enteredinto between American Spectrum Realty, Inc., a Maryland corporation (the “Company”)and Harry A. Mizrahi (“Executive”).

 

**Recitals**

 

A.            The Company is a corporationintended to be qualified and to operate as a real estate investment trust underthe Internal Revenue Code of 1986, as amended.

 

B.            The Company wishes to employExecutive and Executive wishes to be employed by the Company, on the terms andconditions set forth below.

 

THEREFORE, theparties agree as follows:

 

1.             **Employment Duties**.During the Term (as defined in paragraph 2 below), the Company will employExecutive as its Chief Operating Officer and Senior Vice President. Executivewill devote substantially all of his business time and attention to theperformance of his duties under this Agreement. Executive shall have theduties, rights and responsibilities normally associated with his position withthe Company, together with such other reasonable duties which are commensuratewith his position relating to the operation of the business of the Company andits affiliates as may be assigned to him from time to time by the President orChief Executive Officer of the Company or by the Board of Directors. Suchduties shall include being responsible for the Company’s interaction with thepublic capital markets including, research coverage activities; investorrelations, Company branding and public relations initiatives; trading exchange relationshipsincluding, the American Stock Exchange and related specialists; and, workingwith the Chief Executive Officer and with the Board of Directors.  With respect to public capital marketsactivities, Executive will be responsible for corporate debt issuance throughprivate or public placement, publicly or privately placed preferred stock,publicly or privately placed common stock, and/or other forms of corporatecapital.  In addition, Executive willwork in conjunction with the Chief Executive Officer and Senior Vice PresidentInvestments, for sourcing and negotiating Company acquisitions, includingportfolios and individual assets, and dispositions, including travel to supportthese activities.  If the Company shallso request, Executive shall act as an officer and/or director of any of thesubsidiaries of the Company as they may now exist or may be established by theCompany in the future without any compensation other than that provided for inparagraph 3.

 

2.             **Term**. The term ofExecutive’s employment under this Agreement (the “Term”) will begin onthe date of this Agreement and will continue, subject to the terminationprovisions set forth in paragraph 5 below, until the first anniversary of thedate hereof, provided that this Agreement will automatically renew foradditional one year periods unless either party gives written notice to theother not to extend the Term not less than 90 days prior to the then nextupcoming expiration date.

 

3.             **Salary and Bonus**.

 

a.             Salary. During each year ofthe Term, Executive will receive a salary at the initial annual rate of$204,500 (the “Base Salary). The Base Salary will be adjusted for each

 

 

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completed propertypurchase and the revised Base Salary will be paid beginning with the first payperiod following a property acquisition that increases the cost for all of theCompany’s real property above the thresholds as follows:

 
| **Cost of Completed Property  Purchased**     |   | **Revised Annualized Compensation**                                                |
|-----------------------------------------------|--------|------------------------------------------------------------------------------------|
| Over $269 million but  less that $750 million |   | $623.70 for each $1,000,000  in increased cost of the Company’s real property |
| Over $750 million                             |   | $504,500                                                                           |

 

For purposes of the abovecalculation of the “Property Cost” it shall be assumed that the “Property Cost”of the real property currently owned by the Company is $269,000,000.

 

b.             Bonus. In addition to theBase Salary, the Executive shall be entitled to an annual incentive bonuspayable within 120 days after the end of each year ended December 31 in anamount which shall be determined in the sole discretion of the Board ofDirectors taking into account such factors concerning the performance of theCompany and Executive and Executive’s overall compensation level, as shall bedetermined by the Board of Directors. The amount of the incentive bonus shallbe determined in the sole discretion of the Board of Directors and Executiveshall not be entitled to any incentive bonus unless and until such incentivebonus is approved by the Board of Directors.

 

4.             **Fringe Benefits**. Inaddition to the other compensation payable pursuant to this Agreement, duringthe Term:

 

a.             Standard Benefits. Executivewill be entitled to receive such fringe benefits and perquisites, includingmedical and life insurance, as are generally made available from time to timeto senior management employees and Executives of the Company and to participatein any pension, profit–sharing, stock option or similar plan or programestablished from time to time by the Company for the benefit of its seniormanagement employees.

 

b.             Vacation and Sick Leave.Executive will be entitled to such periods of paid vacation (not less thanthree weeks per year) and sick leave allowance each year that are consistentwith the Company’s vacation and sick leave policy for senior management.

 

c.             Business Expenses. TheCompany will pay or reimburse Executive for all business–related expensesincurred by Executive in the course of his performance of duties under thisAgreement, subject to the procedures established by the Company from time totime with respect to incurrence, substantiation, reasonableness and approval,including without limitation dues, meeting expenses and travel costs forprofessional organizations not to exceed****$10,000.00 per calendar year.

 

d.             Stock Options. Executiveshall be entitled to participate in employee stock plans from time to timeestablished for the benefit of employees of the Company in accordance with theterms and conditions of such plans. Simultaneously with the closing of theconsolidation of the Company pursuant to the Company’s Registration Statementon Form S–4, Executive shall receive (i) pursuant to and subject to theCompany’s 2001 Omnibus Stock  Plan (the“Plan”), a stock option grant for 50,000 shares of restricted common stock. Theoptions shall be exercisable as follows: (i)

 

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50% on the date hereof atan option exercise price of $15.00 per share and (ii) 50% on April 15, 2002 atan option exercise price equal to the price that the stock is trading on April15, 2002 or if there is no established market, at the fair market value of thestock as determined by the Board of Directors in its sole discretion.  Executive has previously received a grant of35,000 shares of restricted common stock pursuant to the Plan which sharesshall be subject to repurchase by the Company on termination of Executive’semployment for Cause or by the Executive without Good Reason prior to October15, 2002 for a price of $.01 per share, which repurchase option shall lapse inits entirety on October 14, 2002. Notwithstanding the foregoing, stock optionsgranted to Executive shall become fully exercisable and repurchase restrictionson stock grants shall lapse in full upon (i) a Change of Control of theCompany (as defined herein) or (ii) Executive’s termination of employment byExecutive with Good Reason or by the Company without Cause, and Executive shallhave one (1) year from such termination, or remaining term of the option, ifearlier, to exercise such options.

 

 

5.             **Termination of Employment**.

 

a.             Death and Disability.Executive’s employment under this Agreement will terminate immediately upon hisdeath and upon 30 days’ prior written notice given by the Company in the eventExecutive is determined to be “permanently disabled” (as defined below).

 

b.             For Cause. The Company mayterminate Executive’s employment under this Agreement for “Cause” (as definedbelow) upon providing Executive written notice of termination, which noticewill describe in detail the basis of such termination and will become effectiveimmediately after Executive’s receipt thereof unless Executive (i) cures to thesatisfaction of the Board of Directors the alleged violation or othercircumstance which was the basis of such termination within such thirty (30)day notice period or (ii) sends, within thirty (30) days, written notice to theBoard disputing in good faith the existence of Cause and requesting arbitrationof such dispute pursuant to paragraph 9 below. During the pendency of thearbitration, Executive will continue to receive all compensation and benefitsto which he is entitled hereunder but shall have no duties or authority inconnection with any activities of the Company. If the Company is not successful in obtaining a determination by thearbitrators that there was Cause for termination, the Company will payExecutive’s reasonable expenses, including, without limitation, reasonableattorneys’ fees and disbursements, in connection with such dispute resolutionand Executive may elect to terminate his employment and shall receive the paymentsand benefits set forth in paragraph 6(b) as if his employment were terminatedwithout Cause.  If the Company issuccessful in obtaining a determination by the arbitrators that there was Causefor termination, the Executive shall pay the Company’s expenses, includingwithout limitation, reasonable attorneys’ fees and disbursements, in connectionwith such dispute resolution.

 

c.             For Good Reason. Executivemay terminate his employment under this Agreement for “Good Reason” (as definedbelow) upon providing the Company 30 days’ prior written notice of termination,which notice will detail the basis of such termination and will becomeeffective on the 30th day after the Company’s receipt thereof, unless theCompany cures the alleged violation or other circumstance which was the basisof such termination within such 30–day notice period; provided that anytermination pursuant to (d)(iii)(C) of the definition of Good Reason shall bemade by notice given not more than 60 days after the effective date of theChange of Control (as defined below).

 

 

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d.             Definitions. For purposes ofthis Agreement:

 

(i)            Executive will be deemed “permanentlydisabled” if he becomes unable to discharge his normal duties ascontemplated under this Agreement for more than six consecutive months as aresult of incapacity due to mental or physical illness as determined by aphysician acceptable to Executive and the Company and paid by the Company,whose determination will be final and binding. If Executive and the Company areunable to agree on a physician, Executive and the Company will each choose onephysician who will mutually choose the third physician, whose determinationwill be final and binding.

 

(ii)           “Cause” means either (A) abreach by Executive of any material provisions of this Agreement, but only if,after notice provided in subparagraph (b) above, Executive fails to cure suchbreach, (B) action by Executive constituting willful misconduct in connectionwith performing his duties as set forth by the Board of Directors or asestablished by law based on Executive’s position with the Company, (C) an actof fraud, misappropriation of funds or embezzlement by Executive in connectionwith his employment hereunder; or (D) Executive is convicted of, pleadsguilty to or confesses any felony.

 

(iii)         “Good Reason” means theoccurrence of any of the following, without the prior written consent ofExecutive: (A) a breach by the Company of any of its material obligations underthis Agreement, but only if after expiration of the 30 day notice periodprovided in subparagraph (c) above, the Company fails to cure such breach or(B) a Change of Control as herein defined, or (C) the withdrawal withoutExecutive’s consent of any material part of Executive’s responsibilities,duties or authority as previously discharged or as set forth in this Agreementor (D) the harassment of Executive intended, designed or which would have theforeseeable effect of causing Executive to resign or abandon Executive’s employmentwith Company or (E) change of location of Company’s offices where Executive iscurrently employed to a location more than thirty miles from such location.

 

(iv)                              “Change of Control” means theoccurrence of

 

(a)           An acquisition (other than directlyfrom the Company) of any voting securities of the Company (the “VotingSecurities”) by any “Person” (as the term person is used for purposes ofSection 13(d) or 14(d) of the Exchange Act) immediately after which such Personhas “Beneficial Ownership” (within the meaning of Rule 13d–3 promulgatedunder the Exchange Act) of fifty percent (50%) or more of the combined votingpower of the Company’s then outstanding Voting Securities; provided, however,in determining whether a Change in Control has occurred, Voting Securitieswhich are acquired in a “Non–Control Acquisition” (as hereinafterdefined) shall not constitute an acquisition which would cause a Change inControl. A “Non–Control Acquisition” shall mean an acquisition by (a) anemployee benefit plan (or a trust forming a part thereof) maintained by (i) theCompany or (ii) any corporation or other Person of which a majority of itsvoting power or its voting equity securities or equity interest is owned,directly or indirectly, by the Company (for purposes of this definition, a“Subsidiary”), (b) the Company or its Subsidiaries, (iii) any corporation orother Person the majority of its voting power or its voting equity securitiesis owned, directly or indirectly, by William J. Carden or 

 

 

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John N. Galardi or(iv) any Person in connection with a “Non–Control Transaction” (ashereinafter defined);

 

(b)           The individuals who, as of the dateof this Agreement, are members of the Board (the “Incumbent Board”), cease forany reason to constitute at least two-thirds of the members of the Board; provided,however,  that if the election,or nomination for election by the Company’s common stockholders, of any newdirector was approved by a vote of at least two–thirds of the IncumbentBoard, such new director shall, for purposes of this Plan, be considered as amember of the Incumbent Board; provided, however, that noindividual shall be considered a member of the Incumbent Board if suchindividual initially assumed office as a result of either an actual orthreatened “Election Contest” (as described in Rule 14a–11 promulgatedunder the Exchange Act) or other actual or threatened solicitation of proxiesor consents by or on behalf of a Person other than the Board (a “Proxy Contest”)including by reason of any agreement intended to avoid or settle any ElectionContest or Proxy Contest; or

 

(c)           Approval by stockholders of theCompany of:

 

(i)            A merger, consolidation orreorganization involving the Company, unless such merger, consolidation orreorganization is a “Non–Control Transaction” a “Non–ControlTransaction” shall mean a merger, consolidation or reorganization of theCompany where:

 

(A)          the stockholders of the Company,immediately before such merger, consolidation or reorganization, own, directlyor indirectly immediately following such merger, consolidation orreorganization, at least fifty percent (50%) of the combined voting power ofthe outstanding voting securities of the corporation resulting from such mergeror consolidation or reorganization (the “Surviving Corporation”) insubstantially the same proportion as their ownership of the Voting Securitiesimmediately before such merger, consolidation or reorganization,

 

(B)           the individuals who were members ofthe Incumbent Board immediately prior to the execution of the agreementproviding for such merger, consolidation or reorganization, constitute at leasttwo–thirds of the members of the board of directors of the SurvivingCorporation, or a corporation beneficially directly or indirectly owning amajority of the Voting Securities of the Surviving Corporation, and

 

(C)           no Person other than (i) the Company,(ii) any Subsidiary, (iii) any employee benefit plan (or any trust forming apart thereof) maintained by the Company, the Surviving Corporation, or anySubsidiary, or (iv) any Person who, immediately prior to such merger,consolidation or reorganization had Beneficial Ownership of thirty percent(30%) or more of the then outstanding Voting Securities has Beneficial Ownershipof thirty percent (30%) or more 

 

 

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of the combinedvoting power of the Surviving Corporation’s then outstanding voting securities.

 

(ii)           A complete liquidation or dissolutionof the Company; 

 

or

 

(iii)          The sale or other disposition of allor substantially all of the assets of the Company to any Person (other than atransfer to a Subsidiary).

 

Notwithstandingthe foregoing, a Change in Control shall not be deemed to occur solely becauseany Person (the “Subject Person”) acquired Beneficial Ownership of morethan the permitted amount of the then outstanding Voting Securities as a resultof the acquisition of Voting Securities by the Company which, by reducing thenumber of Voting Securities outstanding, increases the proportional number ofshares Beneficially Owned by the Subject Person, provided that if a Change inControl would occur (but for the operation of this sentence) as a result of theacquisition of Voting Securities by the Company, and after such shareacquisition by the Company, the Subject Person becomes the Beneficial Owner ofany additional Voting Securities which increases the percentage of the thenoutstanding Voting Securities Beneficially Owned by the Subject Person, then aChange in Control shall occur.  In noevent shall stock option ownership be considered in calculating Change ofControl.

 

6.             **Benefits Upon Termination**.

 

a.             Termination with Cause orResignation. Upon termination of Executive’s employment by the Company forCause or a voluntary resignation by Executive (other than for Good Reasonpursuant to paragraph 5(c) above) during the Term, the Company will remainobligated to pay Executive only the unpaid portion of his Base Salary andbenefits to the extent accrued through the effective date of termination andreimburse Executive for all expenses. Any amount due under this subparagraphwill be payable within 30 days after the date of termination. In addition towhatever other rights or remedies the Company may have at law or in equity, allstock options held by Executive, whether vested or unvested as of the date oftermination, shall immediately expire on the date of termination and allunvested stock–based grants shall immediately expire.

 

b.             Termination without Cause or forGood Reason. The Company shall also have the right to terminate Executive’semployment without Cause. Upon termination of Executive’s employment (x) by theCompany without Cause or (y) by Executive for Good Reason, in addition to thestock options and stock grants to be retained by Executive in accordance withSection 4(d) hereof, Executive will be entitled to the benefits provided below,subject to signing by Executive of a general release of claims in a formreasonably satisfactory to the Company and Executive:

 

(i)            the Company will pay as severancepay to Executive, in equal monthly installments over a twelve month period, anamount (the “Severance Amount”) equal to one times the sum of the Executive’sBase Salary and bonus for the immediately preceding calendar year or fifty(50%) percent of the base salary if the termination is in the first calendaryear of employment (which shall be annualized if the applicable calendar yearis less than a full year);

 

 

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 (ii)          subjectto Executive making a valid election to continue medical coverage under theCompany’s group health plan, the Company will pay Executive’s COBRA premium forthe shorter of (x) 12 months following Executive’s termination of employment or(y) the end of the COBRA continuation period;

(iii)          pay Executive the unpaid portion ofhis Base Salary and benefits to the extent accrued through the effective dateof termination and any bonus previously approved by the board for a prior yearand not yet paid; and

 

(iv)          reimburse Executive for all expenses.

 

c.             Termination Upon Death orPermanent Disability. Upon termination of Executive’s employment uponExecutive’s death or permanent disability, in addition to the stock options andstock grants to be retained by Executive or his estate in accordance withSection 4(d) hereof, Executive or Executive’s estate will be entitled to thebenefits provided below, subject to signing by Executive or Executive’s estateof a general release of claims in a form reasonably satisfactory to theCompany:

 

(i)            the Company will pay as severancepay to Executive or Executive’s estate, in equal monthly installments over atwelve–month period, an amount equal to the Executive’s Base Salary as ineffect on the date of termination of employment;

 

(ii)           subject to Executive making a validelection to continue medical coverage under the Company’s group health plan,the Company will pay Executive’s COBRA premium for the shorter of (x) 12 monthsfollowing Executive’s termination of employment or (y) the end of the COBRAcontinuation period;

 

(iii)          pay Executive the unpaid portion ofhis Base Salary and benefits to the extent accrued through the effective dateof termination and any bonus previously approved by the board for a prior yearand not yet paid; and

 

(iv)          reimburse Executive for all expenses.

 

d.             No Mitigation. Executivewill not be required to mitigate the amount of any

payment provided for inthis paragraph 6 by seeking other employment or otherwise, nor will the amountof any payment or benefit provided for in this paragraph 6 be reduced by anycompensation earned by him as the result of employment by another employer orby retirement benefits after the date of termination.

 

e.             Expirationof this Agreement. In the event the Term of this Agreement expires withouthaving otherwise been previously terminated pursuant to paragraph 5 above or bythe Company without Cause, Executive will not be entitled to any severancecompensation whatsoever under this paragraph 6.

 

7.             **No Solicitation; Confidentiality;Competition; Cooperation**.

 

a.             During the Restricted Period(defined below), neither Executive nor any Executive–Controlled Person(defined below) will, without the prior written consent of the Board, directlyor indirectly solicit for employment, employ in any capacity or make anunsolicited recommendation to any other person that it employ or solicit foremployment any person who is or 

 

 

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was, at any time duringthe Restricted Period, an officer, executive or employee of the Company or ofany of its affiliates. As used in this Agreement, the term “Executive–ControlledPerson” shall mean any company, partnership, firm or other entity as towhich Executive possesses, directly or indirectly, the power to direct or causethe direction of the management and policies of such entity, whether throughthe ownership of voting securities, by contract or otherwise.

 

b.             Executive acknowledges that,through his status as Chief Operating Officer and Senior Vice President of theCompany, he has, and will have, possession of important, confidentialinformation and knowledge as to the business of the Company and its affiliates,including, but not limited to, knowledge of marketing and operating strategies,acquisition, leasing and other agreements, financial results and projections,future plans, the provisions of other important contracts entered into by theCompany and its affiliates, possible acquisitions and similar information.Executive agrees that all such knowledge and information constitutes a vitalpart of the business of the Company and its affiliates and is by its naturetrade secrets and confidential information proprietary to the Company and itsaffiliates (collectively, “Confidential Information”). Executive agreesthat he shall not, so long as the Company remains in existence, divulge,communicate, furnish or make accessible (whether orally or in writing or inbooks, articles or any other medium) to any individual, firm, partnership orcorporation, any knowledge or information with respect to ConfidentialInformation directly or indirectly useful in any aspect of the business of theCompany or any of its affiliates. The obligations of confidentiality set forthherein shall not apply to any Confidential Information which is:

 

(i)            possessed by Executive prior toreceipt from the Company, other than through prior disclosure by the Company,as evidenced by Executive’s written records;

 

(ii)           published or available to the generalpublic otherwise than through a breach of this Agreement or other obligation ofconfidentiality by Executive;

 

(iii)          obtained by Executive from a thirdparty with a valid right to disclose such Confidential Information, providedthat such third party is not under a confidentiality obligation to the Company;

 

(iv)          independently developed by employeesof Executive who had no knowledge of the Company’s Confidential Information asevidenced by Executive’s written records; or

 

(v)           required to be disclosed pursuant tolaw, regulation, or court order provided, however, that Executive gives theCompany prompt, written notice prior to disclosure in order to allow that partyto take whatever action it deems necessary to protect its ConfidentialInformation.

 

c.             All memoranda, notes , notebooks,lists, records and other documents or papers (and all copies thereof),including such items stored in computer memories, portable computers and thelike, on microfiche, disk or by any other means, made or compiled by or onbehalf of Executive or made available to him relating to the Company are andshall be the Company’s property and shall be delivered to the Company promptlyupon the termination of Executive’s employment with the Company or at any othertime on request and such information shall be held confidential by Executiveafter the termination of his employment with the Company.

 

 

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d.             Following Executive’s terminationof employment, Executive will cooperate with the Company, its executives, counseland other professional advisors (i) to the extent reasonably possible withrespect to the consummation of matters that were in progress at the time ofExecutive’s termination of employment and (ii) with respect to any litigationor regulatory matters arising out of or related to the business, operations, orpersonnel of the Company (including participation in depositions, hearings andtrials, as and if deemed necessary or appropriate by the Company, execution ofappropriate affidavits and participation in interviews with Company counsel).The Company shall compensate Executive on a reasonable basis for any servicesprovided by Executive pursuant to this paragraph 7(d).

 

e.             The provisions contained in thisparagraph 7 as to the time periods, scope of activities, persons or entitiesaffected, and territories restricted shall be deemed divisible so that, if anyprovision contained in this paragraph 7 is determined to be invalid orunenforceable, such provisions shall be deemed modified so as to be valid and enforceableto the full extent lawfully permitted.

 

f.              Executive agrees that theprovisions of this paragraph 7 are reasonable and necessary for the protectionof the Company and that they may not be adequately enforced by an action fordamages and that, in the event of a breach thereof by Executive or anyExecutive-Controlled Person, the Company shall be entitled to apply for andobtain injunctive relief in any court of competent jurisdiction to restrain thebreach or threatened breach of such violation or otherwise to enforcespecifically such provisions against such violation, without the necessity ofthe posting of any bond by the Company. Executive further covenants and agreesthat if he shall violate any of his covenants under this paragraph 7, the Companyshall not be obligated to make any payments or provide any benefits provided inparagraph 6 and the Company shall be entitled to recover any amounts previouslypaid pursuant to paragraph 6. Such a remedy shall, however, not be exclusiveand shall be in addition to any injunctive relief or other legal or equitableremedy to which the Company is or may be entitled. Accordingly, Executive andCompany agree that they shall reimburse the prevailing party for any reasonableattorneys’ fees and expenses that the prevailing party might incur in anyaction brought to enforce this paragraph 7 if it is judicially determined thatExecutive has or has not breached this paragraph 7.

 

8.             **Indemnification**. Tothe full extent permitted by applicable law, Executive shall be defended,indemnified and held harmless by the Company against any and all judgments,penalties, fines, amounts paid in settlement, and other reasonable expenses(including, without limitation, reasonable attorneys’ fees and disbursements)actually incurred by Executive in connection with any threatened, pending orcompleted action, suit or proceeding (whether civil, criminal, administrative,investigative or other) for any action or omission in his capacity as adirector, officer or employee of the Company or any of its subsidiaries oraffiliates, but the Executive shall not be indemnified for his own grossnegligence willful misconduct or fraud. Indemnification under this paragraph 8 shall be in addition to, and notin substitution of, any other indemnification by the Company of its officersand directors.

 

9.             **Arbitration**. Theparties hereto will endeavor to resolve in good faith any controversy,disagreement or claim arising between them, whether as to the interpretation,performance or operation of this Agreement or any rights or obligationshereunder.  If they are unable to do so,any such controversy, disagreement or claim will be submitted to bindingarbitration, for final resolution without appeal by either party giving writtennotice to the other of the existence of a dispute which it desires to havearbitrated. The arbitration will be conducted in New 

 

 

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York, New York by asingle neutral arbitrator and win be held in accordance with the rules of theAmerican Arbitration Association.  Thedecision and award of the arbitrators must be in writing and will be final andbinding upon the parties hereto. Judgment upon the award may be entered in anycourt having jurisdiction thereof, or application may be made to such court fora judicial acceptance of the award and an order of enforcement, as the case maybe. The expenses of arbitration will be borne in accordance with thedetermination of the arbitrator with respect thereto, except as otherwisespecified in paragraph 5(b) above. Pending a decision by the arbitrator withrespect to the dispute or difference undergoing arbitration, all otherobligations of the parties will continue as stipulated herein, and all moniesnot directly involved in such dispute or difference will be paid when due.

 

10.           **Miscellaneous**.

 

a.             Executive represents and warrantsthat he is not a party to any agreement, contract or understanding, whetheremployment or otherwise, which would restrict or prohibit him from undertakingor performing employment in accordance with the terms and conditions of thisAgreement.

 

b.             The provisions of this Agreementare severable and if any one or more provisions may be determined to be illegalor otherwise unenforceable, in whole or in part, the remaining provisions andany partially unenforceable provision to the extent enforceable in anyjurisdiction will remain binding and enforceable.

 

c.             The rights and obligations of theCompany under this Agreement inure to the benefit of, and will be binding on,the Company and its successors and permitted assigns, and the rights andobligations (other than obligations to perform services) of Executive underthis Agreement will inure to the benefit of, and will be binding upon,Executive and his heirs, personal representatives and permitted assigns; provided,however, that Executive shall not be entitled to assign or delegate anyof his rights and obligations under this Agreement without the prior writtenconsent of the Company; provided, further, that the Company shall nothave the right to assign or delegate any of its rights or obligations underthis Agreement except to a corporation, partnership or other business entitythat is, directly or indirectly, controlled by the Company.

 

d.             Any notice to be given under thisAgreement will be personally delivered in writing or will have been deemed dulygiven when received after it is posted in the United States mail, postageprepaid, registered or certified, return receipt requested, and if mailed tothe Company, will be addressed to its principal place of business, attention:Secretary, and if mailed to Executive, will be addressed to him at his homeaddress last known on the records of the Company or at such other address oraddresses as either the Company or Executive may hereafter designate in writingto the other.

 

e.             The failure of either party toenforce any provision or provisions of this Agreement will not in any way beconstrued as a waiver of any such provision or provisions as to any futureviolations thereof, nor prevent that party thereafter from enforcing each andevery other provision of this Agreement. The rights granted the parties hereinare cumulative and the waiver of any single remedy will not constitute a waiverof such party’s right to assert all other legal remedies available to it underthe circumstances.

 

 

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f.              **THIS AGREEMENT WILL BE GOVERNED BY ANDCONSTRUED ACCORDING TO THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TOCONFLICTS OF LAWS.**

 

g.             Captions and paragraph headingsused herein are for convenience and are not a part of this Agreement and willnot be used in construing it.

 

IN WITNESSWHEREOF, the parties have executed this Agreement on the day and year first setforth above.

 
|   | AMERICAN SPECTRUM  REALTY, INC. |
|--------|---------------------------------|
|   |                            |
|   | By:                             | /s/ William J. Carden |   |
|   | Name:                           | William J. Carden |
|   | Title:                          | President |
|   |                            |
|   | /s/ Harry A. Mizrahi            |
|   | HARRY A. MIZRAHI                |
|        |                                 |  |  |  |  |

 

 

 

 

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