Exhibit 10.5

 

EXECUTION VERSION

 

JBG - HAPPEL
  Consulting Agreement Terms

 

Dated as of May 25, 2016

 

	
General   Terms
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Parties:
    	
 
    	
Michael Happel (the “Consultant”) and New York REIT, Inc.,   to be renamed JBG Realty Trust, Inc. (the “Company” or “Target”)
    
	
 
    	
 
    	
 
    
	
General:
    	
 
    	
Commencing on the closing date (the “Effective   Date”) of the proposed business combination transactions (collectively, the   “Transaction”) between the Company and various JBG-related entities (“JBG”)   pursuant to the terms of a Master Combination Agreement dated as of   May 25, 2016 (the “MCA”), JBG will cause the Company to retain the   Consultant as an independent consultant to provide services to the Company   and its affiliates pursuant to the terms and conditions specified herein (the   “Agreement”). The terms set forth herein will be memorialized in a Consulting   Agreement to be executed by the parties (as set forth above) prior to and   effective on the Effective Date (the initial term and any extension thereof,   collectively, the “Consulting Agreement”)
    
	
 
    	
 
    	
 
    
	
Term:
    	
 
    	
Initial six (6) month term, subject to advance   written notice for early termination by either party; the term may be   extended upon mutual agreement of the Parties of all terms for any such   extension (the “Consulting Term”)
    
	
 
    	
 
    	
 
    
	
Title/Position:
    	
 
    	
Senior Transition Advisor
    
	
 
    	
 
    	
 
    
	
Services:
    	
 
    	
During the Consulting Term, the Consultant will   provide general transition oversight for the Company’s New York office and   operations, and serve as a liaison between employees of the Company and   former employees and other service providers of Target. The Consultant will   work closely with Todd Rich, who will serve as the Transition Head of the   Company, and David Paul, who will serve as President of the Company,   following the closing of the Transaction to assist with the transition of   certain matters, including asset management, property management, accounting,   legal, and other ancillary services from the Target’s platform that was in effect   prior to the Effective Date to the new platform that will be in effect   following the Effective Date. The Consultant also will provide certain   transition services related to certain joint venture relationships,   including, but not limited to, the Worldwide Plaza joint venture. As   appropriate, the Company may also request that the Consultant be available to   facilitate or participate in discussions with certain of the Company’s key   investors. (All of the foregoing services, collectively, the “Services”). For   the avoidance of doubt, the Services will be separate from and unrelated to   any services provided by New York Recovery Advisors, LLC or any of its   affiliates (collectively, the “Advisor”) pursuant to a Transition Services   Agreement between the Advisor and the Company.
    
	
 
    	
 
    	
 
    
	
Place of Performance:
    	
 
    	
From time to time during the Consulting Term, the   Consultant may perform his duties remotely or at the Company’s New York   office, and the Company agrees to provide the Consultant with fully enclosed   office space comparable to the Consultant’s office space with Target prior to   the Effective Date. The Consultant also will travel to the Company’s   Washington, DC office as reasonably requested from time to time.
    
	
 
    	
 
    	
 
    
	
Reporting Obligations:
    	
 
    	
The Consultant will report to the Chief Executive   Officer of the Company and will work closely with other Company employees,   including the Transition Head and the
    


 











 

	
 
    	
 
    	
President.
    
	
 
    	
 
    	
 
    
	
Other Activities:
    	
 
    	
During the Consulting Term, the Consultant will   provide the Services to the Company on a non-exclusive basis and will not be   restricted from providing services to other third parties unrelated to the   Company and its affiliates (including, but not limited to, AR Global,   American Realty Capital III. LLC and any of their respective affiliates   (collectively, “ARC”); provided that, except as provided in the last sentence   of this “Other Activities” term, such other services do not impair his   ability to provide the Services to the Company. Notwithstanding the   foregoing, the Consultant will not be restricted from complying with   (i) any post-employment cooperation provisions under any separation   agreement between the Consultant and ARC or (ii) the provisions of the   Consultant’s employment agreement with ARC.
    
	
 
    	
 
    	
 
    
	
Consulting Fees and Other   Payments
    
	
 
    	
 
    	
 
    
	
Initial Consulting Fee:
    	
 
    	
On the Effective Date, the Company will issue to the   Consultant shares of the Company’s common stock having a grant date fair   value of $2.0 million based on the ten-day volume weighted average price as of   the Effective Date that are unrestricted and not subject to any time or   performance based vesting restriction. Such shares will be issued in a   private placement transaction exempt from the registration requirements of   the federal securities laws. The Company will include the Consultant’s shares   in the resale registration statement that it files with respect to other   shares being issued in connection with the Transaction, which registration   statement the Company is required to use its commercially reasonable efforts   to have declared effective by the Securities and Exchange Commission 60 days   after the Effective Date. These shares will not be subject to any lock-up   provisions.
    
	
 
    	
 
    	
 
    
	
End of Term Bonus:
    	
 
    	
On the six-month anniversary of the Effective Date   (the “End Term Date”), the Company will issue to the Consultant shares of the   Company’s common stock having a grant date fair value of $1.0 million based   on the ten-day volume weighted average price as of the End Term Date that are   unrestricted and not subject to any time or performance based vesting   restriction (the “End of Term Bonus”). Such shares will either be included in   the resale registration statement referred to above or be fully registered   shares issued under the Company’s new equity incentive plan. These shares, if   issued, will not be subject to any lock-up provisions. The End of Term Bonus   will constitute a guaranteed bonus payable in all events, unless (i) the   Company can demonstrate that the Consultant has failed to perform his   consulting obligations in a material respect constituting Cause (as defined   below) or (ii) the Consultant voluntarily terminates his services for no   reason prior to the End Term Date. If the Company terminates the Consultant’s   services prior to the End Term Date without Cause, the Consultant will be   entitled to payment of the End of Term Bonus immediately upon such   termination.
    
	
 
    	
 
    	
 
    
	
Discretionary Bonus:
    	
 
    	
In its sole discretion, the Company may elect to pay   a discretionary bonus to the Consultant for the Services performed under the   Consulting Agreement. Such bonus, if determined by the Company to be earned,   will be payable on the End Term Date in additional shares of the Company’s   common stock having a grant date fair value of up to $500,000 based on the   ten-day volume weighted average price as of the End Term Date, which shares,   if issued, will be unrestricted and not subject to any further time or   performance based vesting restriction. Such shares will either be included in   the resale registration statement referred to above or be fully registered   shares issued under the Company’s new equity incentive plan. These shares, if   issued, will not be subject to any lock-up provisions.
    


 

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Additional Cash Payment:
    	
 
    	
During the Consulting Term, the Company also will   make monthly cash payments, in arrears, to the Consultant of $1,500 per   month, over the six (6) month term, representing an aggregate cash   payment of $9,000.
    
	
 
    	
 
    	
 
    
	
Expenses:
    	
 
    	
The Consultant will be reimbursed for reasonable and   necessary travel, entertainment and any other business expenses in accordance   with the Company’s expense reimbursement policies.
    
	
 
    	
 
    	
 
    
	
280G Excise Taxes
    	
 
    	
In the event that it shall be determined by   qualified advisors that any payment or benefit made or provided, or to be   made or provided, by the Company (or any entity that is a successor or   affiliate following the Effective Date) to or for the benefit of the   Consultant solely pursuant to the terms of the Agreement (the “Total Payments”),   will be subject to the excise tax imposed by Section 4999 of the   Internal Revenue Code of 1986, as amended (the “Code”) by reason of being   considered “contingent on a change in ownership or control” of the Company,   within the meaning of Section 280G of the Code (or any successor   provision thereto) or any comparable tax imposed by any replacement or   successor provision of United States tax law, or by state or local law, or   any interest or penalties with respect to such tax (such tax or taxes,   together with any such interest and penalties, being hereafter collectively   referred to as the “Excise Tax”), the Consultant shall have the right to   either (i) direct that the Total Payments to be made pursuant to the   Agreement shall be reduced by such amount as the Consultant may elect to the   minimum extent necessary (but in no event below zero) that does not trigger   the Excise Tax; or (ii) to the extent it is determined that the   Consultant would be better off on an after—tax basis (taking into account   such Excise Tax and any applicable Additional Taxes (as defined below) if the   Consultant received the Total Payments and paid such Excise Tax and   Additional Taxes (as defined below), the Consultant will have the right to   receive a cash payment of up to $250,000 from the Company (the “Additional   Payment”) to offset the amount of such Excise Tax imposed on the Total   Payments, as well as the amount of all applicable federal, state and local   income and employment taxes (the “Additional Taxes”).

 

The Company’s obligations under subparagraph   (ii) above shall be subject to the Company’s receipt from the Consultant   of a written good faith opinion from qualified advisors that an Excise Tax   imposed on the Total Payments shall be payable by the Consultant and such   opinion shall include an estimate amount of such Excise Tax. For the   avoidance of doubt, any Excise Tax arising from payments outside this   Agreement shall be the responsibility of the Consultant, and the Additional   Payment set forth above shall only apply to any such Excise Tax imposed on   the Total Payments, as well as any such Additional Payment.

 

Any repayment or reimbursement shall be structured   in a manner to comply with Section 409A of the Code.
    
	
 
    	
 
    	
 
    
	
Miscellaneous
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
Binding Agreement:
    	
 
    	
JBG, the Company and the Consultant (each a “Party”   and together the “Parties”) hereby agree that the Company and the Consultant   intend to enter into prior to and effective on the Effective Date a mutually   agreeable definitive Consulting Agreement setting forth the terms of this Agreement   and such other terms as the Parties may agree. However, unless and until the   Company and the Consultant enter into such a definitive Consulting Agreement,   this Agreement will constitute the binding
    


 

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agreement of the Parties with respect to the subject   matter hereof and shall continue in full force and effect; provided, however,   that if the MCA is terminated this Agreement shall be void ab initio and   shall have no further force or effect.
    
	
 
    	
 
    	
 
    
	
Notices:
    	
 
    	
All notices and other communications hereunder will   be in writing or by written telecommunication and will deemed to have been   duly given if delivered to the address of the recipient shown below its   signatures below and shall be effective if delivered personally, when   received; if sent by overnight courier, when receipted for; if mailed, five   (5) days after being mailed; and on confirmed receipt if sent by email,   provided a copy of such communication is sent by regular mail as described   above.
    
	
 
    	
 
    	
 
    
	
Governing Law:
    	
 
    	
This Agreement and the Consulting Agreement will be   construed, performed and enforced in accordance with, and governed by, the   internal laws of the State of New York, without giving effect to the   principles of conflicts of law thereof.
    
	
 
    	
 
    	
 
    
	
Other Miscellaneous:
    	
 
    	
No failure or delay by a Party in exercising any   right, power or privilege hereunder will operate as a waiver thereof, nor   will any single or partial exercise thereof preclude any other or further   exercise thereof or the exercise of any other right, power or privilege   hereunder. This Agreement will constitute the entire agreement among the   Parties with regard to the subject matter hereof. No modification, amendment   or waiver of this Agreement will be binding without the written consent of   JBG, the Company and the Consultant. No Party may assign, or otherwise   transfer, its rights or delegate its duties or obligations under this   Agreement without the prior written consent of the other Parties. This   Agreement may be signed in counterparts, which together will constitute a   single agreement.
    
	
 
    	
 
    	
 
    
	
Additional   Terms and Definitions
    
	
 
    	
 
    	
 
    
	
Indemnification:
    	
 
    	
The Consulting Agreement will provide   indemnification provisions for the benefit of Consultant on substantially the   same terms and conditions as provided to the senior executive officers and   directors of the Company.
    
	
 
    	
 
    	
 
    
	
Cause:
    	
 
    	
i)   any act or omission by the Consultant resulting in a material breach of the   Agreement or willful failure to perform his duties after a written demand for   performance has been delivered to the Consultant, and the Consultant fails to   cure within 30 days of such demand, and which in either case has or could   reasonably be expected to have a material adverse effect on the Company; or

 

ii)   gross negligence or willful misconduct resulting in substantial loss or   substantial damage to the reputation of the Company or the Consultant’s   commission of misappropriation, fraud, embezzlement or conversion.
    


 

[Signature Page Follows]

 

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IN WITNESS WHEREOF, each of the undersigned has entered into this Agreement as of May 25, 2016.

 

	
Company:
    	
New York REIT, Inc.
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Nicholas Radesca
    
	
 
    	
 
    	
Name:
    	
Nicholas Radesca
    
	
 
    	
 
    	
Title:
    	
Chief Financial Officer
    
	
 
    	
 
    
	
 
    	
New York   REIT, Inc.
    
	
 
    	
405 Park Avenue
    
	
 
    	
Attention: Nick Radesca
    
	
 
    	
New York, NY 10022
    
	
 
    	
Email:   nradesca@arlcap.com
    
	
 
    	
 
    
	
JBG:
    	
JBG Properties, Inc. (on   behalf of each of the JBG entities executing the MCA)
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ W.   Matt Kelly
    
	
 
    	
 
    	
Name:
    	
W. Matt Kelly
    
	
 
    	
 
    	
Title:
    	
Executive Vice   President & Assistant Secretary
    
	
 
    	
 
    
	
 
    	
JBG Companies
    
	
 
    	
Attention: W. Matt   Kelly
    
	
 
    	
4445 Willard Avenue
    
	
 
    	
St. 400
    
	
 
    	
Chevy Chase, MD   20815-3690
    
	
 
    	
Email: mkelly@jbg.com
    
	
 
    	
 
    
	
CONSULTANT:
    	
 
    
	
 
    	
/s/ Michael   A. Happel
    
	
 
    	
Michael A. Happel
    
	
 
    	
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