Employment AGREEMENT
Exhibit 10.1
THIS EMPLOYMENT AGREEMENT (the “Agreement”), dated as of September 15, 2017, is made and entered into by and between AMREP Corporation (the “Company”), an Oklahoma corporation, and Xxxxxxxx X. Xxxxxx (the “Executive”).
1.1. “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
1.2. “Board” means the board of directors of the Company (including any successor thereto).
1.3. “Cause” means (i) indictment, commission of, or the entry of a plea of guilty or no contest to, (A) a felony or (B) any crime (other than a felony) that causes the Company or any of its Affiliates public disgrace or disrepute, or adversely affects the Company’s or any of its Affiliates’ operations or financial performance or the relationship the Company has with its Affiliates, customers and suppliers; (ii) commission of an act of gross negligence, willful misconduct, fraud, embezzlement, theft or material dishonesty with respect to the Company or any of its Affiliates; (iii) breach of the Executive’s fiduciary duty of loyalty to the Company or any of its Affiliates; (iv) alcohol abuse or use of controlled substances (other than prescription drugs taken in accordance with a physician’s prescription); (v) breach of any agreement with the Company or any of its Affiliates, including this Agreement and the Restrictive Covenant Agreement; (vi) material breach of any Company policy; (vii) excessive absence from the Company, other than regular vacations, business travel and approved leaves of absence; (viii) impeding, endeavoring to influence, obstructing, or failing to materially cooperate with an investigation authorized by the Board or similar governing body of any of its Affiliates, a self-regulatory organization or a governmental department or agency; (ix) refusal to perform the lawful directives of the Board, executive management or the responsibilities as an employee and officer of the Company; or (x) engaging in such other behavior detrimental to the interests of the Company.
1.4. “Code” means the Internal Revenue Code of 1986.
1.5. “Disability” means a condition entitling the Executive to benefits under the Company’s long term disability plan, policy or arrangement; provided, however, that if no such plan, policy or arrangement is then maintained by the Company and applicable to the Executive, “Disability” will mean the Executive’s inability to perform the essential duties of his position due to a mental or physical condition, with or without a reasonable accommodation. Termination as a result of a Disability will not be construed as a termination by the Company “without Cause.”
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1.6. “Person” means any individual, firm, corporation, partnership, limited liability company, joint venture, association, governmental authority, unincorporated organization, trust, association or other entity.
1.7. “Severance Plan” means the AMREP Corporation Severance Plan effective March 6, 2014, as amended and as may be amended after the date hereof.
1.8. “Termination Date” means the earlier of (i) the date two business days after the filing of the Company’s annual report on Form 10-K for the year ended April 30, 2018; (ii) on the date following written notice from the Company that Executive’s employment with the Company has been or will be terminated, (iii) on the effective date of the Executive resigning from the Company, (iv) on the date of his death or (v) on the date of his Disability, as reasonably determined by the Company.
4.1.1. if the Executive is eligible for benefits under the Severance Plan, the Company shall pay to the Executive the amounts due to the Executive pursuant to the Severance Plan as in effect on the date hereof and in accordance with the provisions of the Severance Plan;
4.1.2. the Company shall pay to the Executive the amount equal to (i) twenty thousand dollars ($20,000) minus (ii) the amount equal to (A) the number of months (including partial months) starting on September 15, 2017 and ending on the Termination Date multiplied by (B) one thousand dollars ($1,000); and
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4.1.3. any vesting, restrictions or conditions on the sale of any stock awards made to the Executive that occurred prior to the date hereof (collectively, “Equity Awards”) shall lapse or otherwise be deemed fully vested, accelerated or otherwise satisfied, as the case may be. The previous sentence shall be deemed an amendment to any such Equity Award.
Except as otherwise provided in this Section 4.1, all compensation and benefits will cease at the time of the Executive’s cessation of employment with the Company and neither the Company nor any of its Affiliates will have any further liability or obligation by reason of such cessation of employment. The payments and benefits described in this Section 4.1 are in lieu of, and not in addition to, any other plan, program or policy maintained by the Company or any of its Affiliates. Notwithstanding anything to the contrary in this Agreement, the payments described in Section 4.1 are conditioned on: (a) the Executive’s execution and delivery to the Company, and the expiration of all applicable statutory revocation periods without revocation by the Executive, by the sixtieth (60th) day following the effective date of his cessation of employment, of a general release of claims against the Company and its Affiliates substantially in the form attached hereto as Exhibit A (subject to any changes requested by the Company, the “Release”); and (b) the Executive’s continued compliance with the provisions of the Restrictive Covenant Agreement (as defined below). The benefits described in Section 4.1 will commence to be paid on the first payroll period following the sixty (60) day period described above. Notwithstanding any other provision of this Agreement to the contrary, it is intended that any severance amount shall be intended to satisfy either (1) the safe harbor set forth in the regulations issued under Code section 409A (Treas. Regs. 1.409A-1(n)(2)(ii)) or (2) be treated as a Short-term Deferral as that term is defined under Code section 409A (Treas. Regs. 1.409A-1(b)(4)).
5.1. If any payment or benefit the Executive would receive pursuant to this Agreement or otherwise (all such payments or benefits hereinafter, “Payment”), would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to an amount determined by the Company in good faith to be the maximum amount that may be provided to the Executive without resulting in any portion of such Payment being subject to the Excise Tax (the amount of such reduction, the “Cutback Amount”). If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Cutback Amount, the Executive shall be entitled to select which Payments (of those that are not considered to be deferred compensation under Section 409A of the Code) shall be reduced hereunder; provided that, if the Executive fails to so select promptly, the Company shall select which Payments (of those that are not considered to be deferred compensation under Section 409A of the Code) will be reduced. Payments that are considered to be deferred compensation under Section 409A of the Code shall be reduced only to the extent that the complete reduction of the Payments in the preceding sentence is insufficient to eliminate the imposition of the excise tax imposed under Section 4999 of the Code.
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5.2. If the Company believes that Section 5.1 may be applicable, it shall appoint a nationally recognized accounting firm to make the determinations required hereunder and perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and the Executive within fifteen (15) days after the date on which right to a Payment is triggered (if requested at that time by the Company). Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive.
7.2.1. Notwithstanding anything to the contrary in this Agreement, no portion of the benefits or payments to be made under Section 4.1.2 hereof will be payable until the Executive has a “separation from service” from the Company within the meaning of Section 409A of the Code. In addition, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent compliance with the requirements of Treas. Reg. § 1.409A-3(i)(2) (or any successor provision) is necessary to avoid the application of an additional tax under Section 409A of the Code to payments due to the Executive upon or following his “separation from service”, then notwithstanding anything to the contrary in this Agreement (or any otherwise applicable plan, policy, agreement or arrangement), any such payments that are otherwise due within six (6) months following the Executive’s “separation from service” (taking into account the preceding sentence of this paragraph) will be deferred without interest and paid to the Executive in a lump sum immediately following such six (6) month period. This paragraph should not be construed to prevent the application of Treas. Reg. § 1.409A-1(b)(9)(iii) (or any successor provision) to amounts payable hereunder. For purposes of the application of Section 409A of the Code, each payment in a series of payments will be deemed a separate payment.
7.2.2. Notwithstanding anything to the contrary in this Agreement, except to the extent any expense, reimbursement or in-kind benefit provided to the Executive does not constitute a “deferral of compensation” within the meaning of Section 409A of the Code, and its implementing regulations and guidance, (i) the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to the Executive in any other calendar year, (ii) the reimbursements for expenses for which the Executive is entitled to be reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred and (iii) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit.
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7.2.3. Anything to the contrary herein notwithstanding, all benefits or payments provided by the Company to the Executive that would be deemed to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code are intended to comply with Section 409A of the Code. Notwithstanding anything to the contrary in this Agreement, distributions may only be made under this Agreement upon an event and in a manner permitted by Section 409A of the Code or an applicable exemption.
7.5. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the Commonwealth of Pennsylvania.
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HOWEVER, EXECUTIVE UNDERSTANDS THAT EXECUTIVE SHALL HAVE NO RIGHT OR AUTHORITY TO HAVE ANY DISPUTE ARBITRATED AS A CLASS OR COLLECTIVE ACTION, NOR SHALL EXECUTIVE HAVE ANY RIGHT OR AUTHORITY TO JOIN ANY SUCH ACTION. FURTHER, THE ARBITRATOR SHALL HAVE NO RIGHT TO CERTIFY, CONSOLIDATE, OR COLLECTIVELY ARBITRATE MULTIPLE INDEPENDENT CLAIMS.
In addition, Executive understands that nothing in this Agreement shall prevent the Company from applying to courts where necessary to obtain emergency or temporary injunctive relief in order to prevent irreparable harm pending arbitration of the dispute between the parties.
Binding arbitration under this Agreement shall be conducted in Xxxxxxxxxx County, Pennsylvania, unless the parties mutually agree to another location. The arbitration shall be conducted before a neutral arbitrator selected by both parties from the AAA’s Employment Dispute Resolution Roster. Costs of the arbitration will be governed by the AAA’s Employment Arbitration Rules and Mediation Procedures. The Federal Rules of Civil Procedure and any comparable state rules shall not apply to the binding arbitration; however, the parties will be permitted to conduct discovery in accordance with the Federal Rules of Civil Procedure. The arbitrator shall issue a written opinion setting forth the factual and legal findings and conclusions on which his or her decision is based.
The arbitrator shall be authorized to award whatever remedies are allowed by law, but such remedies shall be limited to those that would be available to a party in a court of law for the claims presented to, and decided by, the arbitrator. Except as may be permitted or required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties.
A demand for arbitration must be submitted within the appropriate statute of limitations period under governing law. Any demand for arbitration made to the Company must be in writing and delivered by hand or first class mail to 000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000, Attention: Chief Financial Officer, with a copy to 000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000, Attention: General Counsel (or to such other address that may be designated by the Company from time to time in accordance with Section 7.12). The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration.
In the event that any portion of the Appellate Rules is deemed invalid, void or unenforceable, the right of either party to appeal from an arbitration award shall be abolished and the arbitration award shall be final and binding.
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· | Executive: to the address contained in his personnel file. |
· | Company: 000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000, Attention: Chief Financial Officer, with a copy to 000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000, Attention: General Counsel. |
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[Signature Page Follows]
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AMREP Corporation | ||
By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |
Name: Xxxxxxxxxxx X. Xxxxxx | ||
Title: President and Chief Executive Officer |
/s/ Xxxxxxxx X. Xxxxxx | |
Xxxxxxxx X. Xxxxxx |
EXHIBIT A
RELEASE OF CLAIMS
This RELEASE OF CLAIMS (this “Release”) is given as of ______________, 20__ by Xxxxxxxx X. Xxxxxx (the “Executive”).
WHEREAS, pursuant to Section 4.1 of the Employment Agreement, dated as of September 15, 2017 (the “Agreement”), by and between the Company and the Executive, the Company has agreed to pay the Executive certain amounts and to provide certain benefits, subject to his execution and non-revocation of this Release. All terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement.
2.1. any and all Claims for wages and benefits including salary, stock options, stock, royalties, commissions, license fees, health and welfare benefits, severance pay, bonuses and vacation, paid time off or other time off pay;
2.2. any and all Claims for wrongful discharge, breach of contract, whether express or implied, and Claims for breach of implied covenants of good faith and fair dealing;
2.3. any and all Claims for alleged employment discrimination on the basis of race, color, religion, sex, age, national origin, sexual orientation, veteran status, disability or handicap, in violation of any federal, foreign, state, or local statute, ordinance, judicial precedent or executive order, including claims for discrimination under the following statutes: Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.; the Civil Rights Act of 1866, 42 U.S.C. §1981; the Civil Rights Act of 1991; the Age Discrimination in Xxxxxxxxxx Xxx, 00 X.X.X. §000 et seq.; the Older Workers Benefit Protection Act 29 U.S.C. §§ 623, 626 and 630; the Rehabilitation Act of 1972, 29 U.S.C. §701 et seq.; the Americans with Xxxxxxxxxxxx Xxx, 00 X.X.X. §00000 et seq.; the Family and Medical Leave Act of 1993, 29 X.X.X. §0000, et seq.; the Fair Labor Standards Act, 29 U.S.C. §201, et seq.; the Fair Credit Reporting Act, 15 U.S.C. §1681, et seq.; the Employee Retirement Income Security Act of 1974, 29 U.S.C. §1000, et seq. (“ERISA”); the Pennsylvania Human Relations Act; the Pennsylvania Equal Pay Law; the Pennsylvania wage and hour laws; the Pennsylvania Whistleblower Law; the New Jersey Civil Rights Act; the New Jersey Law Against Discrimination; the New Jersey wage and hour laws; the New Jersey Conscientious Employee Protection Act; or any other comparable state statute or local ordinance;
2.4. any and all Claims under any federal, foreign, state or local statute relating to employee benefits or pensions;
2.5. any and all Claims in tort, including any Claims for assault, battery, misrepresentation, defamation, interference with contract or prospective economic advantage, intentional or negligent infliction of emotional distress, duress, loss of consortium, invasion of privacy and negligence; and
2.6. any and all Claims for attorneys’ fees and costs.
The Executive acknowledges that he has received from the Company all wages, expense reimbursements, accrued but unused vacation, paid time off or other time off pay and incentive compensation of all types, including deferred or foregone salary or cash or equity compensation, due and owing to the Executive by the Company. The Executive hereby waives all claims or entitlement to any deferred salary, and to any unvested stock option or other unvested equity grants.
The Executive acknowledges and represents that neither the Company nor any of its Affiliates has violated or denied the Executive any right under the Family Medical Leave Act (including any similar law under state law, “FMLA”), or any other federal, foreign, state or local law, statute or ordinance. The Executive acknowledges and agrees that neither the Company nor any of its Affiliates has interfered with, restrained, or denied the exercise of or the attempt to exercise any rights under the FMLA, and that neither the Company nor any of its Affiliates has discriminated against or retaliated against the Executive in any way regarding the exercise of any rights under the FMLA. The Executive further acknowledges and represents that, as of the date of the execution of this Release, the Executive has suffered no on-the-job or work-related accident or injury, occupational disease or disability whether temporary, permanent, partial, or total.
The Executive expressly represents that the Executive has not filed a lawsuit or initiated any other administrative proceeding against any Releasee. The Executive further promises not to initiate a lawsuit or to bring any other claim against any Releasee arising out of or in any way related to the Executive’s employment by the Company or any of its Affiliates or the termination of that employment, other than an action to enforce the Agreement.
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The Executive understands that nothing contained in this Agreement limits the Executive’s ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal, state or local governmental agency or commission (“Government Agencies”); provided, however, that any claims by the Executive for personal relief in connection with such a charge or investigation (such as reinstatement or monetary damages) would be barred. The Executive further understands that this Agreement does not limit the Executive’s ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company. This Agreement does not limit the Executive’s right to receive an award for information provided to any Government Agencies.
Notwithstanding anything to the contrary in this Release, the Executive does not waive or release any Claims for vested rights or benefits under any retirement plan of the Company or any rights under any vested stock option or other vested equity grants executed by the Company.
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11. Governing Law. This Release shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Pennsylvania or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the Commonwealth of Pennsylvania.
1As applicable based on the advice of counsel. If 45-day consideration period is applicable, this Release will be revised based on advice of counsel to comply with applicable law.
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HOWEVER, THE EXECUTIVE UNDERSTANDS THAT THE EXECUTIVE SHALL HAVE NO RIGHT OR AUTHORITY TO HAVE ANY DISPUTE ARBITRATED AS A CLASS OR COLLECTIVE ACTION, NOR SHALL THE EXECUTIVE HAVE ANY RIGHT OR AUTHORITY TO JOIN ANY SUCH ACTION. FURTHER, THE ARBITRATOR SHALL HAVE NO RIGHT TO CERTIFY, CONSOLIDATE, OR COLLECTIVELY ARBITRATE MULTIPLE INDEPENDENT CLAIMS.
In addition, the Executive understands that nothing in this Release shall prevent the Company from applying to courts where necessary to obtain emergency or temporary injunctive relief in order to prevent irreparable harm pending arbitration of the dispute between the parties.
Binding arbitration under this Release shall be conducted in Xxxxxxxxxx County, Pennsylvania, unless the Company and the Executive mutually agree to another location. The arbitration shall be conducted before a neutral arbitrator selected by both parties from the AAA’s Employment Dispute Resolution Roster. Costs of the arbitration will be governed by the AAA’s Employment Arbitration Rules and Mediation Procedures. The Federal Rules of Civil Procedure and any comparable state rules shall not apply to the binding arbitration; however, the parties will be permitted to conduct discovery in accordance with the Federal Rules of Civil Procedure. The arbitrator shall issue a written opinion setting forth the factual and legal findings and conclusions on which his or her decision is based.
The arbitrator shall be authorized to award whatever remedies are allowed by law, but such remedies shall be limited to those that would be available to a party in a court of law for the claims presented to, and decided by, the arbitrator. Except as may be permitted or required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the Company and the Executive.
A demand for arbitration must be submitted within the appropriate statute of limitations period under governing law. Any demand for arbitration made to the Company must be in writing and delivered by hand or first class mail to 000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000, Attention: Chief Financial Officer, with a copy to 000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000, Attention: General Counsel (or to such other address that may be designated by the Company from time to time). The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration.
In the event that any portion of the Appellate Rules is deemed invalid, void or unenforceable, the right of either party to appeal from an arbitration award shall be abolished and the arbitration award shall be final and binding.
IN WITNESS WHEREOF, the Executive has executed this Release on the date first above written.
Xxxxxxxx X. Xxxxxx |
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EXHIBIT B
EMPLOYEE CONFIDENTIAL INFORMATION, RESTRICTIVE
COVENANT
AND INVENTION ASSIGNMENT AGREEMENT
Dated as of September 15, 2017
Employee: | Xxxxxxxx X. Xxxxxx |
Employer: | AMREP Corporation (“Employer”) |
In consideration of Employer agreeing to enter into the Employment Agreement, dated as of the date hereof, by and between the Employer and the Employee, I agree to this Employee Confidential Information, Restrictive Covenant and Invention Assignment Agreement (this “Agreement”) as follows:
This Agreement sometimes refers to my “Employment.” I understand that my “Employment” means the entire period during which I am employed by Employer, including all times during and after work hours, whether I am actively employed or on any kind of leave or absence, and whether I am employed full-time or part-time. In addition, it is understood that Employment includes all periods commencing from my start date with Employer through and including my end date with Employer. Furthermore, I understand that “Company” means Employer or any of its affiliates, together with any of their respective predecessors, successors or assigns.
NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO CONSTITUTE A PROMISE OR CONTRACT OF EMPLOYMENT FOR A SPECIFIC TERM OR PERIOD. THE EMPLOYMENT RELATIONSHIP IS “AT-WILL” AND, THEREFORE, EMPLOYER HAS THE RIGHT TO TERMINATE THE EMPLOYMENT RELATIONSHIP AT ANY TIME, FOR ANY REASON, WITH OR WITHOUT CAUSE OR PRIOR NOTICE, AT ITS SOLE DISCRETION.
I understand that “Confidential Information” means all of the Company’s business, technical and other proprietary information, as well as any Company information which is not generally known by the public (other than as a result of a disclosure directly or indirectly by me). Such information is Confidential Information no matter how I learned of it – whether disclosed to me, directly or indirectly, in writing, orally, by drawings or inspection of documents or other tangible property or in any other manner or form, tangible or intangible. I understand specifically that Confidential Information includes the following types of information:
· | information belonging to others who have entrusted such information to the Company, as further described in Section 6 below; |
· | information that would not have been known to the public generally other than as a result of a disclosure directly or indirectly by me; |
· | information concerning research, inventions, discoveries, developments, scientific information, techniques, processes, formulae, technology, designs, drawings, engineering, specifications, algorithms, finances, sales or profit figures, financial plans, customer lists, operations, financial condition, results of operations, projections, strategies, marketing information, employees, prospective employees, customers, prospective customers, investors, potential investors, business plans, contracts, markets, investing plans, product plans, marketing, cost information, distribution or sales methods or systems, products, services, production plans, system implementation plans, business concepts, supplier or vendor information, business procedures or business operations related thereto, and other financial and business information relating to the Company; |
· | all computer software (in source, object or other code forms and including all programs, modules, routines, interfaces and controls), data, databases, Internet designs and strategies, files and any documentation protocols and specifications related to the foregoing; |
· | all know-how and trade secrets; |
· | all unpublished copyrightable material; |
· | any use, model, variation, application, reduction to practice, discussion and any other communication or information in, regarding or relating to, or usable in or with any of the goods or services made, used or sold by the Company; and |
· | any and all notes, documentation, analyses, compilations, studies, reproductions, copies or other documents prepared by me or any other person containing or reflecting or based upon, in whole or in part, any such information. |
I understand that nothing contained in this Agreement limits the Executive’s ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal, state or local governmental agency or commission (“Government Agencies”). I further understand that this Agreement does not limit my ability to communicate with any Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company. This Agreement does not limit my right to receive an award for information provided to any Government Agencies.
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· | documents and other materials containing or comprising Confidential Information, including in particular, but not limited to, all software, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches and notebooks, whether hard copies or electronic copies; and |
· | tangible property and equipment or other materials belonging to the Company (whether or not containing or comprising Confidential Information) or otherwise relating to the Company, its business, its properties, its investments or its investors, including in particular, but not limited to, laptop computers, devices, solutions, samples, models, marketing materials, brochures, purchase order forms and letterhead, and all reproductions and copies of such things. |
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I recognize and agree that during my Employment, Employer solely and exclusively owns all Inventions and Works, as well as any and all inherent and appurtenant moral rights and intellectual property rights, including all patent rights, copyrights, trademarks, know-how and trade secrets (collectively, “Intellectual Property Rights”) related thereto, except as stated in Section 11 below. I hereby, without additional payment or consideration, assign, transfer and convey to Employer all of my worldwide right, title and interest in and to all Inventions and Intellectual Property Rights.
I further recognize and agree that all Works and which are protectable by copyright (including all original hard copy and electronic drawings and any manuals, instructions or other written product) are “works made for hire,” as that term is defined in the United States Copyright Act. However, to the extent that any Work may not, by operation of any law, be a work made for hire, I hereby, without additional payment or consideration, assign, transfer and convey to Employer all of my worldwide right, title and interest in and to such Work and all Intellectual Property Rights relating to it. I will treat all Inventions and Works, as well as any Intellectual Property Rights related thereto, as Confidential Information, until and unless such Inventions, Works or Intellectual Property Rights are determined to be excluded from this Agreement by way of Section 11 below
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12. Noncompetition and Nonsolicitation. For a period from the date of this Agreement through the termination of my Employment with Employer and for a period from the termination of my Employment with Employer through the last day of the month in which I cease receiving cash severance benefits from the Company, I hereby agree that, regardless of the reason for termination, without obtaining the prior written consent of Employer, I will not, nor will any of my affiliates or representatives, (a) on my own behalf, on behalf of any other party, circumvent, interfere with, or assist any other party in circumventing, or interfering with the business of the Company; (b) own, manage, operate, finance, conduct business, engage, directly or indirectly, alone or as greater than a 2% shareholder, partner, officer, director, employee, consultant or advisor, or otherwise in any way participate in or become associated with, any other business that is competitive with the business of the Company; (c) solicit, attempt to solicit business, do business with, accept or divert business from or otherwise interfere with the Company’s relationship with any person (i) which, during the time of my employment with Employer was an investor, lender, client, customer or had a business relationship with the Company or (ii) to which the Company had made a proposal or presentation within the nine-month period prior to my termination of employment; and (d) employ or solicit for employment any employee of the Company, induce any employee of the Company to terminate such employee’s employment with the Company or offer employment to anyone the Company hires, or hire any person whom I know the Company has offered employment. Notwithstanding the foregoing sentence, Employer expressly acknowledges that I may accept employment with a large multi-unit employer that possesses a unit that engages in business that is competitive with the business of the Company; provided, that I do not work in or with, or give advice to, the unit engaged in the business that is competitive with the business of the Company, and provided further that I notify the Company in writing no later than the third day after I accept an offer of employment from the non-competing unit of such a multi-unit employer.
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I agree to indemnify and hold the Company and each of its shareholders, members, directors, managers, officers, agents, affiliate or other employees harmless from any damages, losses, liabilities, obligations, fines, penalties, diminution in value (based on a multiple of earnings or otherwise), lost profit, incidental damages, deficiencies, demands, claims, suits, actions, causes of action, assessments, taxes, costs and expenses (including attorneys’ fees and expenses) arising out of any breach of this Agreement by me. I acknowledge that money damages are an inadequate remedy for breach of this Agreement because of the difficulty of ascertaining the amount of damage that will be suffered in the event that this Agreement is breached. Therefore, the Company shall be entitled to equitable relief, including an injunction and specific performance, without the necessity of proving actual damages, without the need to post bond or any other security and without being required to submit proof of economic value of any Confidential Information, in the event of any breach of the provisions of this Agreement by me, in addition to all other remedies available to the Company at law or in equity.
I agree that, in the event the restrictions contained in this Agreement are not fully complied with, the period of the restrictions shall be extended to commence with the date of full compliance and to run fully thereafter, reduced only by the length of time, if any, between the cessation of my employment and the first violation of these restrictions.
(a) No failure or delay by the Company 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 embodies the entire agreement and understanding between Employer and I with respect to the subject matter hereof and supersedes all prior discussions, negotiations, agreements and understandings with respect to the subject matter hereof. The headings used in this Agreement have been inserted for convenience of reference only and do not define or limit the provisions hereof. This Agreement may not be amended except upon the written consent of Employer and my written consent. No provision hereof may be waived except upon written consent of Employer.
(b) I understand that the restrictive covenants set forth in this Agreement shall be construed as provisions independent of any other provision in this Agreement or in any other agreement by, between, among, or affecting me and the Company, and the existence of any claim or cause of action by me against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement of this Agreement.
(c) For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections refer to the Sections of this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Each affiliate of the Company is an intended beneficiary/third party beneficiary of this Agreement and each affiliate of the Company shall have the right to enforce any breach of the provisions this Agreement.
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(d) All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth below (or to such other address that may be designated by a party from time to time in accordance with this Section 16(d)):
· | Employee: to the address contained in his personnel file. |
· | Employer: 000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000, Attention: Chief Financial Officer, with a copy to 000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000, Attention: General Counsel. |
(e) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to any choice of law or conflicts of laws provisions or rule of any jurisdiction that would cause the substantive laws of any other jurisdiction to apply.
(f) The parties hereby mutually agree that any dispute between them arising out of or relating to this Agreement must be submitted for resolution by binding arbitration in accordance with the most current Employment Arbitration Rules and Mediation Procedures of the American Arbitration Association (“AAA”), including the Optional Appellate Arbitration Rules (“Appellate Rules”) effective November 1, 2013. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration.
HOWEVER, I UNDERSTAND THAT I SHALL HAVE NO RIGHT OR AUTHORITY TO HAVE ANY DISPUTE ARBITRATED AS A CLASS OR COLLECTIVE ACTION, NOR SHALL I HAVE ANY RIGHT OR AUTHORITY TO JOIN ANY SUCH ACTION. FURTHER, THE ARBITRATOR SHALL HAVE NO RIGHT TO CERTIFY, CONSOLIDATE, OR COLLECTIVELY ARBITRATE MULTIPLE INDEPENDENT CLAIMS.
In addition, I understand that nothing in this Agreement shall prevent the Company from applying to courts where necessary to obtain emergency or temporary injunctive relief in order to prevent irreparable harm pending arbitration of the dispute between the parties.
Binding arbitration under this Agreement shall be conducted in Xxxxxxxxxx County, Pennsylvania, unless the parties mutually agree to another location. The arbitration shall be conducted before a neutral arbitrator selected by both parties from the AAA’s Employment Dispute Resolution Roster. Costs of the arbitration will be governed by the AAA’s Employment Arbitration Rules and Mediation Procedures. The Federal Rules of Civil Procedure and any comparable state rules shall not apply to the binding arbitration; however, the parties will be permitted to conduct discovery in accordance with the Federal Rules of Civil Procedure. The arbitrator shall issue a written opinion setting forth the factual and legal findings and conclusions on which his or her decision is based.
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The arbitrator shall be authorized to award whatever remedies are allowed by law, but such remedies shall be limited to those that would be available to a party in a court of law for the claims presented to, and decided by, the arbitrator. Except as may be permitted or required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties.
A demand for arbitration must be submitted within the appropriate statute of limitations period under governing law. Any demand for arbitration made to the Company must be in writing and delivered by hand or first class mail to 000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000, Attention: Chief Financial Officer, with a copy to 000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX 00000, Attention: General Counsel (or to such other address that may be designated by the Company from time to time in accordance with Section 16(d)). The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration.
In the event that any portion of the Appellate Rules is deemed invalid, void or unenforceable, the right of either party to appeal from an arbitration award shall be abolished and the arbitration award shall be final and binding.
(g) I may not assign or otherwise transfer this Agreement or any of my rights or obligations hereunder without the prior written consent of Employer. Employer reserves the right to assign its rights under this Agreement, including to any purchaser of all or any portion of its assets (including by way of merger, consolidation or purchase of assets). This Agreement shall be binding upon and inure to the benefit of Employer and my benefit, and our successors and permitted assigns. If any portion or provision of this Agreement shall to any extent be held to be invalid, illegal or unenforceable by a court of competent jurisdiction or by an arbitrator in accordance with Section 16(f), (i) then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so determined invalid, illegal or unenforceable, shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law and (ii) the parties agree that the court or arbitrator making such determination shall have the power to delete, amend or reduce the duration or scope of, the provision thus determined to be invalid, illegal or unenforceable to the extent necessary for said provision to be determined valid, legal and enforceable, such deletion or reduction to apply only with respect to the operation of this Agreement in the particular jurisdiction or arbitration in which such determination is made.
(h) Nothing contained in this Agreement shall be construed as giving me any right to be retained in the employ of Employer or any of its affiliates.
(i) This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission (to which a signed PDF copy is attached) shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
[Signature Page Follows]
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I HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE OBLIGATIONS THAT IT IMPOSES UPON ME WITHOUT RESERVATION, AND HEREBY ACKNOWLEDGE RECEIPT OF A COPY OF SUCH AGREEMENT. OTHER AS STATED HEREIN, NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS AGREEMENT. I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY AND INTENDING TO BE LEGALLY BOUND.
I UNDERSTAND THAT BY SIGNING THIS AGREEMENT I AM WAIVING THE ABILITY TO FILE A LAWSUIT IN COURT TO CHALLENGE ANY ACTION THAT IS COVERED BY THIS AGREEMENT.
/s/ Xxxxxxxx X. Xxxxxx | |
Xxxxxxxx X. Xxxxxx | |
Dated: September 15, 2017 |
Agreed and acknowledged as of September 15, 2017:
AMREP Corporation
By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |
Name: Xxxxxxxxxxx X. Xxxxxx | ||
Title: President and Chief Executive Officer |
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