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NON COMPETITION AGREEMENT
FOR
XXXXXX X. XXXXXX
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NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (this "Agreement") is entered into as of
January 31, 1997, by and between Xxxxxx X. Xxxxxx, an individual residing at
000 Xxxx Xxxxxx, #0X, Xxx Xxxx, Xxx Xxxx 00000 (the "RM Principal"), and Cali
Realty Corporation, a Maryland corporation with offices at 00 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 ("Cali").
R E C I T A L S
WHEREAS, Xxxxxx Xxxxxx Company, LLC, a New York limited liability company
and Xxxxxx Xxxxxx-Eastview North Company, L.P., a New York limited partnership
(collectively "RM") and Cali Realty, L.P., a Delaware limited partnership
("CRLP") and Cali have determined that it is in the best interests of the
parties' long term strategic growth to combine their respective properties and
related assets;
WHEREAS, in order to effectuate this combination, RM has agreed to
contribute certain properties and other assets located throughout southern New
York and Connecticut owned or controlled by RM (the "Property") to designees of
CRLP, to cause certain key executives of RM to become part of the management of
Cali, and through RM's existing structure to continue to manage and operate the
properties being contributed by RM, all as of the closing (the "Closing Date")
and RM has also been granted certain rights with respect to appointing members
of the Board of Directors of Cali (the "Board") which is the sole general
partner of CRLP;
WHEREAS, the RM Principal has served as a principal of RM and, through
such service, has acquired special and unique knowledge, abilities and
expertise; and
WHEREAS, Cali is the recipient of some or all of the Property, and in
connection with the contribution of the Property to Cali, the RM Principal had
access to RM's and Cali's business plans, financial data and other confidential
matters;
WHEREAS, as a condition of the contribution of the Property to Cali, the
RM Principal has agreed to be bound by the non-competition restrictions provided
below; and
WHEREAS, Cali desires to have the RM Principal enter into this Agreement
in order to protect Cali from unfair competition.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Non-Competition. The RM Principal hereby agrees that:
(a) For the period commencing on the Closing Date and terminating on
January 31, 2000 the RM Principal shall not, directly or indirectly, within the
State of New York, the State of New Jersey, the State of Connecticut or the
State of Pennsylvania engage in, or own, invest in, manage or control any
venture or enterprise engaged in any development, acquisition or management
activities with respect to office-service, office or industrial or flex property
without regard to whether or not such activities compete with Cali.
Nothing herein shall prohibit the RM Principal from being a passive
owner of not more than five percent (5%) of the outstanding stock of any class
of securities of a corporation or other entity engaged in such business which is
publicly traded, so long as he has no active participation in the business of
such corporation or other entity. Moreover, the foregoing limitations shall not
be deemed to restrict or otherwise limit the RM Principal from: (i) conducting
real estate development, acquisition, or management activities as and to the
extent permitted pursuant to Section 26 of the Contribution and Exchange
Agreement dated January 24, 1997 by and between Cali, CRLP and RM (the
"Contribution and Exchange Agreement"), (ii) acquiring and conducting real
estate development and management activities with respect to properties which
may be purchased by the RM Principal pursuant to Sections 8.3 or 27.5 of the
Contribution and Exchange Agreement, and (iii) conducting activities within the
ordinary course of business as a stockholder, director, member or manager of
City & Suburban Federal Savings Bank (the "Bank") or any entity controlling,
controlled by or under common control with the Bank, their successors or
assigns.
(b) If, at the time of enforcement of this Paragraph 1, a court
shall hold that the duration, scope, area or other restriction stated herein is
unreasonable, the parties hereto agree that reasonable maximum duration, scope,
area or other restriction may be substituted by such court for the stated
duration, scope, area or other restriction.
(c) For purposes of this Agreement, Cali shall be deemed to include
any entity which is controlled, directly or indirectly, by Cali and any entity
of which a majority of the economic interest is owned, directly or indirectly,
by Cali.
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2. Remedies. The parties hereto agree that Cali would suffer irreparable
harm from a breach by the RM Principal of any of the covenants or agreements
contained herein. Therefore, in the event of the actual or threatened breach by
the RM Principal of any of the provisions of this Agreement, Cali may, in
addition and supplementary to any other rights and remedies existing in its
favor, apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive or other relief in order to enforce or
prevent any violation of the provisions hereof.
3. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
4. Modification or Waiver. No amendment, modification, waiver, termination
or cancellation of this Agreement shall be binding or effective for any purpose
unless it is made in writing signed by the party against whom enforcement of
such amendment, modification, waiver, termination or cancellation is sought. No
course of dealing between or among the parties to this Agreement shall be deemed
to affect or to modify, amend or discharge any provisions or terms of this
Agreement. No delay on the part of Cali or the RM Principal in the exercise of
any of their respective rights or remedies shall operate as a waiver thereof,
and no single or partial exercise by Cali or the RM Principal of any such right
or remedy shall preclude other or further exercise thereof. A waiver of right or
remedy on any one occasion shall not be construed as a bar to or waiver of any
such right or remedy on any other occasion.
5. Notices. All notices or other communications required or permitted
hereunder shall be made in writing and shall be deemed to have been duly given
if delivered by hand or delivered by a recognized delivery service or mailed,
postage prepaid, by express, certified or registered mail, return receipt
requested, and addressed to Cali or the RM Principal, as applicable, at the
address set forth above (or to such other address as shall have been previously
provided in accordance with this section).
6. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS THEREUNDER.
7. Severability. Whenever possible, each provision and term of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision or term of this Agreement shall be held to
be prohibited by or invalid under such applicable law, then, subject to the
provisions of Paragraph 1 (b) above, such provision or term shall be ineffective
only to the extent of such prohibition or invalidity, without invalidating or
affecting in any
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manner whatsoever the remainder of such provision or term or the remaining
provisions or terms of this Agreement.
8. Counterparts. This Agreement may be executed in separate counterparts,
each of which is deemed to be an original and both of which when taken together
shall constitute one and the same Agreement.
9. Headings. The headings of the Paragraphs of this Agreement are inserted
for convenience only and shall not be deemed to constitute a part hereof and
shall not affect the construction or interpretation of this Agreement.
10. Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersedes all other
prior agreements and undertakings, both written and oral, among the parties with
respect to the subject matter hereof.
THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
CALI REALTY CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President and
General Counsel
RM PRINCIPAL
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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