Exhibit 10.8
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made as of September 1,
1996, between CORNERSTONE REALTY INCOME TRUST INC.,(the "Company"), and XXXXX X.
XXXXXX (the "Employee").
RECITALS
A. The Company is in the business of buying and managing commercial and
residential real estate properties.
B. The Employee has extensive knowledge in various aspects of this
business, and has been employed by the Company for some time.
C. The Company wishes to continue its relationship with the Employee,
and both parties desire to reduce their agreement concerning employment to
writing.
NOW, THEREFORE, in consideration of the foregoing and the agreements
contained herein, the parties hereto agree as follows:
1. Employment. The Company hereby employs the Employee as Chief
Executive Officer, and the Employee hereby accepts such employment for a period
of five (5) years beginning on September 1, 1996 and terminating on August 31,
2001 or unless terminated sooner as provided herein.
2. Duties. During his employment the Employee shall hold such positions
and perform such services as may be assigned to him from time to time by the
Chairman of the Board or the Board of Directors of the Company. The Employee
shall report to the Board of Directors or such other officer as may be
designated from time to time by the Board of Directors. The Employee shall
devote as much of his attention and energies to the business of the Company as
is reasonably required in his judgment and that of the Board of Directors.
3. Compensation.
(a) The Employee shall be compensated on the basis of an
annual salary of $210,000, which shall be payable in monthly or more frequent
installments in accordance with the Company's standard payroll practices. The
Company shall review the Employee's performance at the end of each fiscal year
of the Company and, in its sole discretion and based on the Employee's
performance and/or the financial condition of the Company, may either maintain
or increase his salary. Any such change in the salary of the Employee shall not
affect the other terms and conditions of this Agreement, which shall remain in
full force and effect.
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(b) In addition to the salary set forth in Section 3(a), the
Employee shall be eligible to receive an annual bonus to be determined by the
Board of Directors in accordance with the incentive compensation program or
stock award or stock option program as may be in effect from time to time during
the term of the Employee's employment for which he is eligible.
4. Benefits. The Company shall provide the Employee with vacation,
group life insurance, group medical insurance and other such benefits as may be
consistent with the Company's policies applicable to those employees of similar
rank and position. The Company may from time to time add to, reduce, eliminate
or otherwise modify those benefits at its discretion as provided by law.
5. Business Expenses. The Company shall reimburse the Employee for
reasonable and necessary business expenses, ancillary expenses for travel and
similar items, incurred or expended by the Employee in the performance of his
duties hereunder. Such reimbursement shall be in accordance with the Company's
policy and procedures governing reimbursement of such expenses, which may be
altered or modified from time to time in the Company's sole discretion.
6. Covenant Not to Compete or Interfere.
(a) The Employee agrees that during the term of his employment
and for a period of one (1) year thereafter if the Employee terminates his
employment, he will not:
(i) directly or indirectly, in the same or a
similar capacity as that with the Company, be employed by, affiliated with,
direct the business of, or act on behalf of, a business that competes with the
Company in Virginia, North Carolina, or South Carolina.
(ii) solicit, sell or attempt to sell any product
involved in the Company's business to any customer or prospect of the Company
with whom the Employee had dealings or material contact during the course of his
employment with the Company; or
(iii) solicit, induce or attempt to solicit or
induce, any person employed by the Company to leave such employment for
employment with a competing business.
(b) It is the intention of the parties that this Agreement
provide the Company the maximum protection possible in the geographic areas in
which the Company does business and therefore has legitimate business interests.
However, the parties in no way intend to include a provision which contravenes
the public policy of any state. If, at the time of enforcement of this
paragraph, a court should hold the duration, scope or
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area of restriction stated herein unreasonable under the circumstances then
existing, the parties agree that the court may enforce the restrictive covenant
set forth in Section 6(a) to the extent it deems reasonable.
(c) Notwithstanding the above provisions of this Section 6,
the Employee shall have the right to perform his duties as General Partner of
various real estate partnerships in which he is currently a partner as of the
date of this Agreement and to pursue other ventures, including real estate
ventures with Xxxxx Xxxxxx Associates, Inc. (other than ventures that compete
with the Company in Virginia, North Carolina, or South Carolina).
7. Confidentiality. The Employee agrees that, during the term of his
employment and thereafter, he will not use or allow others to use any
confidential or proprietary information of the Company (in whatever form
received or proposed to be used) in any business or venture if the use would or
could be expected to have any material detrimental effect on the Company or its
business, results of operations, financial condition, reputation or affairs,
whether immediately or at any time in the future.
8. Termination. This Agreement shall terminate automatically on August
31, 2001 and may be sooner terminated as follows:
(a) The Company may terminate the Employee's employment and
its obligations under this Agreement in the event of the disability of the
Employee. For purposes of this Agreement, "disability" means the inability of
the Employee to perform the essential functions of his position, after
reasonable accommodation in accordance with the Americans with Disabilities Act,
because of a medically determinable physical or mental impairment which can be
expected to result in death or to continue for a period of at least six
consecutive months, or because any such condition has continued for a period of
six consecutive months. The Company shall give the Employee or his
representative 30 days prior written notice of its decision to terminate his
employment pursuant to this provision, and upon any such termination the Company
shall pay the Employee or his representative, as the case may be, an amount
equal to his then existing annual salary in a one time lump sum payment.
Thereafter, the Company shall have no further obligations to the Employee under
this Agreement other than for such benefits as it may be required to provide
under an applicable benefits policy.
(b) The Company may terminate the Employee's employment and
its obligations under this Agreement at any time without notice for cause. For
purposes of this Agreement, "cause" means (i) the Employee's continued or
deliberate neglect of his duties;(ii) willful misconduct by the Employee
injurious to the Company, whether monetary or otherwise; (iii) the
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Employee's violation of any code or standard of ethics generally applicable to
employees of the Company; (iv) the Employee's active disloyalty to the Company;
(v) the Employee's conviction of a felony; (vi) the Employee's habitual
drunkenness or drug abuse; (vii) the Employee's excessive absenteeism unrelated
to a disability as described above; or (viii) the Employee's breach of this
Agreement. If the Company terminates the Employee's employment pursuant to this
provision, it shall have no further obligation to the Employee under this
Agreement other than for such benefits as it may be required to provide under an
applicable benefits policy.
(c) This Agreement shall terminate automatically upon the
Employee's death. In this event, the Company shall pay the Employee's personal
representative an amount equal to his then existing annual salary in a one-time
lump sum payment within 30 days of his death. The Company shall have no further
obligations to the Employee under this Agreement other than for such benefits as
it may be required to provide under an applicable benefits policy.
9. Survival of Obligations. The obligations of the Employee under
Sections 6 and 7 of this Agreement shall survive the termination of his
employment and this Agreement, regardless of the reason for or method of
termination. Each of the provisions in these Sections shall be enforceable
independently of every other provision, and the existence of any claim or cause
of action the Employee may have against the Company, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement of
these Sections by the Company.
10. Enforcement and Severability.
(a) In the event of a breach or threatened breach by the
Employee of any of the provisions of this Agreement, the Company shall be
entitled to an injunction restraining the Employee from breaching the same.
Nothing contained herein shall be construed as prohibiting the Company from
pursuing any other remedies available to it for such breach or threatened
breach, including the recovery of damages from the Employee. The Employee agrees
to pay the Company all its attorney fees incurred in enforcing its rights under
this Agreement.
(b) If any provision of this Agreement is deemed void or
unenforceable, such provision shall not be deemed part of this Agreement, which
otherwise shall remain in full force and effect.
(c) A waiver by the Company of a breach of any provision of
this Agreement by the Employee shall not operate or be construed as a waiver of
any subsequent breach by the Employee.
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11. GOVERNING LAW, JURISDICTION AND WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
VIRGINIA.
(b) THE PARTIES AGREE THAT ANY AND ALL CAUSES OF ACTION
ARISING UNDER THIS AGREEMENT BY AND BETWEEN THEM SHALL ONLY HAVE JURISDICTION
AND VENUE IN THE CIRCUIT COURT OF HENRICO COUNTY, COMMONWEALTH OF VIRGINIA. THE
PARTIES FURTHER CONSENT TO THE JURISDICTION AND VENUE OF THAT COURT FOR THE
RESOLUTION OF SUCH CAUSES OF ACTION UPON PROPER SERVICE OF PROCESS.
(c) THE PARTIES DESIRE TO AVOID THE ADDITIONAL TIME AND
EXPENSE RELATED TO A JURY TRIAL OF ANY DISPUTES ARISING UNDER THIS AGREEMENT.
THEREFORE, THE PARTIES WAIVE THE RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR
COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ARISING OUT OF OR IN ANY
WAY CONNECTED WITH THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS
WAIVER IS KNOWINGLY, FREELY AND VOLUNTARILY GIVEN, IS DESIRED BY BOTH PARTIES,
AND IS IN THE INTEREST OF BOTH PARTIES.
12. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and given by telex, fax, telegram,
telecopy, hand-delivery or by first class mail, in the case of the Employee, to
either his office or personal residence, or in the case of the Company, to the
Chief Executive Officer or Chairman.
13. Assignment. This Agreement is personal in nature and may not be
assigned by the Company without the written consent of the Employee. In the
event of the sale to any person, partnership, corporation or other entity of
substantially all the assets of the Company, the Employee may, at his option,
consent to the assignment of this Agreement or receive at closing a lump sum
payment equal to three times his then current annual compensation to terminate
this Agreement.
14. Parachute Tax.
(a) In the event that the Employee would, except for this
paragraph, be subject to a tax pursuant to Section 4999 of the Internal Revenue
Code of 1986, as amended (the "Code"), as a result of receiving "parachute
payments" (as defined in Section 280G(b)(2)(A) and (d)(3) of the Code) pursuant
to this Agreement or any other arrangements between the Company and the
Employee, or a deduction would not be allowed to the Company for all or any part
of such payments by reason of Section 280G(a) of the Code, such payments shall
be reduced so that the aggregate "present value" (as defined in Section
280G(d)(4) of the Code) of such payments is an amount equal to one dollar less
than an amount equal to three times the Employee's "base amount," (as
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defined in Section 280G(b)(3)(a) and (d)(1) and (2) of the Code). To achieve
such required reduction in aggregate present value, the Employee shall determine
which parachute payments shall be reduced and the amount of each reduction. To
enable the Employee to make such determination, the Company shall provide the
Employee with such information as is reasonably necessary for such
determination.
(b) Prior to making any payment under this Section 14, either
party may request a determination as to whether such payment would constitute a
"parachute payment," and, if so, the amount by which the payment must be reduced
in accordance herewith. If such a determination is requested, it shall be made
promptly, at the Company's expense, by independent tax counsel selected by the
Company and approved by the Employee (which approval shall not unreasonably be
withheld). The determination of such tax counsel shall be conclusive and binding
on the parties. The Company shall provide such information as tax counsel may
reasonably request, and such counsel may engage accountants or other experts at
the Company's expense to the extent that they deem necessary or advisable to
enable them to reach a determination.
15. Entire Agreement. This instrument contains the entire agreement of
the parties, supersedes any prior employment or consulting agreement between the
parties and may be changed only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought. Both parties acknowledge that they have read these terms,
have had the opportunity to consult counsel, and fully understand and freely and
voluntarily agree to the provisions set forth herein.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day first above written.
CORNERSTONE REALTY INCOME
TRUST, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman
/s/ Xxxxx X. Xxxxxx
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Employee
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