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EXHIBIT 10.5
Employee's Copy
Partnership's Copy
CAPITAL AUTOMOTIVE L.P.
EMPLOYMENT AGREEMENT
To XXXXXX X. XXXXXX:
This Agreement establishes the terms of your employment with Capital
Automotive L.P., a Delaware limited partnership (the "Partnership"). It replaces
your prior employment agreement with Capital Automotive REIT, a Maryland real
estate investment trust (the "Company"), under which the Company assigned your
agreement to the Partnership, and your prior employment agreement with the
Partnership. You remain an employee of the Company, but your primary
responsibility is as an employee of the Partnership.
EMPLOYMENT AND DUTIES You and the Partnership agree to your employment
with the Partnership and to your services as
President and Chief Executive Officer on the
terms contained herein. In such position, you
will report directly to the Company's Board of
Trustees (the "Board") and to the General
Partner of the Partnership. You agree to perform
whatever duties the Partnership may assign you
from time to time, consistent with your position
as a senior executive. During your employment,
you agree to devote your full business time,
attention, and energies to performing those
duties (except as the Partnership otherwise
agrees from time to time). You agree to
faithfully serve the Partnership, to conform to
and comply with the lawful and good faith
directions and instructions given you by the
Partnership, and to use your best efforts to
promote and serve the interests of the
Partnership. You agree to comply with the
non-competition, secrecy, and other provisions
of Exhibit A to this Agreement.
TERM Your employment under this Agreement begins as
of January 1, 2001 (the "Effective Date") and
ends on January 1, 2004, unless it is terminated
sooner under this Agreement.
The period running from the Effective Date to
the date that the Agreement terminates as set
forth in the preceding sentence is the "Term."
Termination or expiration of this Agreement ends
your employment but does not end your obligation
to comply with Exhibit A.
COMPENSATION
Salary and Bonus The Partnership (or, in its discretion, the
Company) will pay you an annual salary (the
"Salary") for 2001 at the rate of not less than
$370,000 in accordance with its payroll
practices. Your target bonus for calendar year
2001 will be $259,000. Each calendar year
thereafter while you are employed under this
Agreement, the Partnership or its Compensation
Committee will review your Salary and target
bonus and consider you for increases from the
Partnership.
Employee Benefits While you are employed under this Agreement, the
Partnership will provide you with the same
benefits, including medical insurance coverage,
as the Partnership makes generally available
from time to time to the Partnership's
employees, as those benefits are amended or
terminated from time to time, and such other
benefits as are commensurate with your position
as a senior executive of a public company,
including either a company automobile or an
allowance for an automobile. Your participation
in the Partnership's benefit plans will be
subject to the terms
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of the applicable plan documents and the
Partnership's generally applied policies, and
the Partnership in its sole discretion may from
time to time adopt, modify, interpret, or
discontinue such plans or policies.
PLACE OF EMPLOYMENT Your principal place of employment will be at
the Partnership's headquarters in the Washington
metropolitan area (or such other offices as the
Partnership may establish from time to time and
to which it assigns you in its sole discretion).
You understand and agree that you must travel
from time to time for business reasons.
INDEMNIFICATION The Partnership will indemnify you to the
fullest extent authorized by law if you are made
a party to any action, suit, or proceeding,
whether criminal, civil, administrative, or
investigative, because you are or were a
manager, officer, or employee of the Partnership
or serve or served any other entity as a
director, officer, or employee at the
Partnership's request; provided, however, that
you must repay the Partnership for any
indemnification if the final determination of an
arbitrator or a court of competent jurisdiction
declares, after the expiration of the time
within which judicial review (if permitted) of
such determination may be perfected, that
indemnification by the Partnership is not
permissible under applicable law.
EXPENSES The Partnership will reimburse you for
reasonable and necessary travel and other
business-related expenses you incur for the
Partnership in performing your duties under this
Agreement. You must itemize and substantiate all
requests for reimbursements. You must submit
requests for reimbursement in accordance with
the policies and practices of the Partnership
and within 60 days after incurring the expense.
NO OTHER EMPLOYMENT For so long as you are employed by the
Partnership, you agree that you will not,
directly or indirectly, provide services to any
person or organization for which you receive
compensation or otherwise engage in activities
that would conflict or interfere significantly
with the faithful performance of your duties to
the Partnership without the Partnership's prior
written consent. (This prohibition excludes any
work performed at the Partnership's direction
including any work for the Company.) The
Partnership acknowledges that, as of the
Effective Date, you serve as a director of The
Munder Funds (a family of mutual funds) and
agrees that such directorship does not violate
the prohibition on other employment. You may
manage your personal investments, as long as the
management takes only minimal amounts of time
and is consistent with the provisions of the No
Competition Section in Exhibit A and is
otherwise consistent with the policies and
practices of the Partnership.
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You represent to the Partnership that you are
not subject to any agreement, commitment, or
policy of any third party that would prevent you
from entering into or performing your duties
under this Agreement, and you agree that you
will not enter into any agreement or commitment
or agree to any policy that would prevent or
hinder your performance of duties and
obligations under this Agreement, including
Exhibit A.
NO CONFLICTS OF INTEREST You confirm that you have fully disclosed to the
Partnership and the Company, to the best of your
knowledge, all circumstances under which you,
your spouse, and your relatives (including their
spouses, children, and relatives) have or may
have a conflict of interest with the Company or
the Partnership. You further agree to fully
disclose to the Partnership any such
circumstances that might arise during the Term.
You agree to fully comply with the Partnership's
policy and practices relating to conflicts of
interest.
NO PAYMENTS TO GOVERNMENTAL You will neither pay nor permit payment of any
OFFICIALS remuneration to or on behalf of any governmental
official other than payments required or
permitted by applicable law.
TERMINATION Subject to the provisions of this section, the
Partnership may terminate your employment, or
you may resign, except that, if you voluntarily
resign, you must provide the Partnership with 90
days' prior written notice (unless the
Partnership has previously waived such notice in
writing or authorized a shorter notice period).
For Cause The Partnership may terminate your employment
for "Cause" if you:
(i) engage in dishonesty that
relates materially to the
performance of services or any
obligations under this
Agreement, including Exhibit A;
(ii) are convicted of, or plead
guilty or no contest to, any
misdemeanor (other than for
minor infractions) involving
fraud, breach of trust,
misappropriation, or other
similar activity or any felony;
(iii) perform your duties under
this Agreement in a grossly
negligent manner; or
(iv) willfully breach this
Agreement, including Exhibit A,
in a manner materially injurious
to the Partnership. An act or
omission is only "willful" if
you acted in bad faith or
without any reasonable belief
that the action or omission was
in the interests of the
Partnership and consistent with
your duties and obligations
under this Agreement.
Your termination for Cause under (i) and (ii)
will be effective immediately upon the
Partnership's mailing or transmission of such
notice. Before terminating your employment for
Cause under (iii) or (iv), the Partnership will
specify in writing to you the nature of the
act, omission, refusal, or failure that it
deems to constitute Cause. The Partnership will
give you the opportunity to correct the
situation (and thus avoid termination for Cause
under (iii) or (iv)). You must complete the
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correction within a reasonable period of time
after the written notice to you, and the
Partnership agrees to provide you no less than
15 days for such correction.
Without Cause Subject to the provisions below under Payments
on Termination, the Partnership may terminate
your employment under this Agreement before the
end of the Term without Cause.
Good Reason You may resign for Good Reason with 45 days'
advance written notice as provided below. "Good
Reason" means the occurrence, without your
written consent, of any of the following
circumstances:
the Partnership's failure to perform or
observe any of the material terms or
provisions of this Agreement,
the assignment to you of any duties
inconsistent with, or any substantial
diminution in, your employment status or
responsibilities as in effect on the date of
this Agreement or your departure from the
Board (other than by your voluntary
resignation or your choice not to stand for
re-election),
the Partnership's relocation of its
headquarters to a location that would
increase your commuting distance by more
than 50 miles, based on your residence when
this Agreement is executed, or
a Change of Control, consisting of any one
or more of the following events:
a person, entity, or group
(other than the Company, the
Partnership, any subsidiary of
either, any Company Group
benefit plan, or any underwriter
temporarily holding securities
for an offering of such
securities) acquires ownership
of more than 40% of the
undiluted total voting power of
the Company's then-outstanding
securities eligible to vote to
elect members of the Board
("Company Voting Securities");
consummation of a merger or
consolidation of the Company
into any other entity--unless
the holders of the Company
Voting Securities outstanding
immediately before such
consummation, together with any
trustee or other fiduciary
holding securities under a
Company Group benefit plan, hold
securities that represent
immediately after such merger or
consolidation more than 60% of
the combined voting power of the
then outstanding voting
securities of either the Company
or the other surviving entity or
its parent; or
the stockholders of the Company
approve (i) a plan of complete
liquidation or dissolution of
the Company or (ii) an agreement
for the Company's sale or
disposition of all or
substantially all the Company's
assets, and such liquidation,
dissolution, sale, or
disposition is consummated.
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Even if other tests are met, a Change of
Control has not occurred under any
circumstance in which the Company files for
bankruptcy protection or is reorganized
following a bankruptcy filing.
You must give notice to the Partnership of
your intention to resign for Good Reason
within 30 days after the occurrence of the
condition or event (within 24 months if the
condition or event is a Change of Control)
that you assert entitles you to resign for
Good Reason. In that notice, you must
specify the condition or event that you
consider provides you with Good Reason and
(except if the condition or event is a
Change of Control) must give the Partnership
an opportunity to cure the condition or
event within 30 days after your notice. If
the Partnership fails to cure the condition,
your resignation will be effective on the
45th day after your notice (unless the Board
has previously waived such notice period in
writing or agreed to a shorter notice
period).
You will not be treated as resigning for
Good Reason if the Partnership had Cause to
terminate your employment as of the date of
your notice of resignation.
Disability If you become "disabled" (as defined below),
the Partnership may terminate your
employment. If the Partnership terminates
your employment because you become disabled
or employment terminates because of your
death, any unvested restricted shares and
any phantom shares previously granted to you
shall become Pro Rata Vested (as defined
below). You are "disabled" if you are
unable, despite whatever reasonable
accommodations the law requires, to render
services to the Partnership for more than 90
consecutive days because of physical or
mental disability, incapacity, or illness.
You are also disabled if you are deemed to
be disabled within the meaning of the
Partnership's long-term disability policy as
then in effect.
Death If you die during the Term, the Term will
end as of the date of your death.
Payments on If the Partnership terminates your
Termination employment for or without Cause or because
of disability or death or you resign, the
Partnership will pay you any unpaid portion
of your Salary pro-rated through the date of
actual termination and any annual bonuses
already determined by such date but not yet
paid, reimburse any substantiated but
unreimbursed business expenses, pay any
accrued and unused vacation time (to the
extent consistent with the Partnership's
policies), and provide such other benefits
as applicable laws or the terms of the
benefits require. Except to the extent the
law requires otherwise or as provided in the
Vesting and Other Benefits section below or
in your option agreement, restricted share
agreement or phantom share agreement(s),
neither you nor your beneficiary or estate
will have any rights or claims under this
Agreement or otherwise to receive severance
or any other compensation, or to participate
in any other plan, arrangement, or benefit,
after such termination.
Vesting and Other In addition to the foregoing payments, if a
Benefits on Termination Change of Control occurs, the Partnership
or Change of Control terminates your employment without Cause, or
you resign for Good Reason before the end of
the of the Term:
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I. all of the stock options and
restricted shares held by you
before your termination of
employment or the Change of
Control (whichever is
applicable) will become fully
vested; and
II. all of the phantom shares
credited to you before your
termination of employment or
the Change of Control
(whichever is applicable)
shall be deemed to have been
credited for three (3) years
for purposes of Section 6.3 of
the Capital Automotive Group
Phantom Share Purchase
Program; and
III. (a) in the case of
termination without Cause
or resignation for Good
Reason, and provided that
you have not previously
received any benefit
under the following
paragraph III(b), the
Partnership will pay you
an amount equal to your
Salary, as then in
effect, for 24 months in
a single lump sum as soon
as practicable but in any
event no more than 90
days after termination;
or
(b) in the case of a Change
of Control, the
Partnership will pay you
an amount equal to 3
times the sum of your
annual Salary, as then in
effect, plus your most
recently established
target bonus, in a single
lump sum as soon as
practicable but in any
event no more than 10
days after the Change of
Control; and
IV. the Partnership will pay the
premium cost for you to receive
any group health coverage the
Partnership must offer you under
Section 4980B of the Internal
Revenue Code of 1986 (the
"Code") for the period of such
coverage; and
V. the Partnership will pay you, at
the time the Partnership would
otherwise pay your annual bonus,
your pro rata share of the bonus
for the year of your termination
(or Change of Control), where the
pro rata factor is based on days
elapsed in such year until the
date of termination (or Change
of Control) over 365, less any
portion of the bonus for such
year already paid.
You are not required to mitigate amounts
payable under the Vesting and Other Benefits
paragraphs by seeking other employment or
otherwise; however, of the foregoing
benefits, an amount equal to two hundred
percent of your annual Salary is being
provided as consideration for your
compliance with the requirements of Exhibit
A. Consequently, you agree to return such
amount if you fail to comply with Exhibit A.
Expiration of this Agreement, whether
because of notice of non-renewal or
otherwise, does not constitute termination
without Cause nor is it grounds for
resignation with Good Reason.
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In addition to the foregoing, if this
Employment Agreement is not renewed by the
Partnership on or before January 1, 2004,
and the Partnership at any time thereafter
terminates your employment without Cause or
you resign for Good Reason, (i) any unvested
restricted shares granted prior to or during
the Term and held by you before your
termination of employment will become vested
to the extent of the ratio of the number of
days that you have been employed by the
Partnership or the Company since the date
they were granted and the total number of
days of employment otherwise required for
them to fully vest (determined separately
for each grant), and (ii) all of the phantom
shares granted prior to or during the Term
and credited to you before your termination
of employment will be deemed to have been
credited for three (3) years for the
purposes of Section 6.3 of the Capital
Automotive Group Phantom Share Purchase
Program to the extent of the ratio of the
number of days that you have been employed
by the Partnership or the Company since the
date they were granted and the three (3)
years of employment otherwise required for
them to fully vest for purposes of that
section (determined separately for each
grant). The pro rata vesting and crediting
referenced in (i) and (ii) in the foregoing
sentence are referred to herein as "Pro Rata
Vested."
Internal Revenue Code If you become entitled to any benefits under
Section 280G this Agreement (the "Agreement Benefits"),
and any of those benefits will be subject to
the tax (the "Excise Tax") imposed by
Section 4999 of the Code (or any similar tax
that may hereafter be imposed), the
Partnership will pay to you an additional
amount (the "Gross-up Payment") such that
the net amount retained by you, after
deduction of any Excise Tax on the total
benefits received by you and any federal,
state and local income tax and Excise Tax on
the Gross-up Payment provided for by this
section, but before deduction for any
federal, state or local income tax on the
Agreement Benefits, will be equal to the
total benefits that you would have received
had the Excise Tax not been applicable and
the Gross-up Payment not paid.
Notwithstanding the foregoing, you and the
Partnership agree to in good faith take any
reasonable actions, at no cost to either
party, to minimize or avoid application of
the Excise Tax.
ASSIGNMENT The Partnership may assign or otherwise
transfer this Agreement and any and all of
its rights, duties, obligations, or
interests under it to:
the Company or any of the
affiliates or subsidiaries of
the Company or
the Partnership or to any
business entity that at any time
by merger, consolidation, or
otherwise acquires all or
substantially all of the
Company's stock or assets or the
partnership units or assets of
the Partnership or to which the
Company or the Partnership
transfers all or substantially
all of its assets.
Upon such assignment or transfer, any such
business entity will be deemed to be
substituted for the Partnership for all
purposes. Assignment or transfer does not
constitute termination without Cause nor is
it grounds for resignation with Good Reason
absent the occurrence of a Change of
Control. This Agreement binds the
Partnership, its successors or assigns, and
your heirs and the personal representatives
of your estate. Without
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the Partnership's prior written consent, you
may not assign or delegate this Agreement or
any or all rights, duties, obligations, or
interests under it.
SEVERABILITY If the final determination of an arbitrator
or a court of competent jurisdiction
declares, after the expiration of the time
within which judicial review (if permitted)
of such determination may be perfected, that
any term or provision of this Agreement,
including any provision of Exhibit A, is
invalid or unenforceable, the remaining
terms and provisions will be unimpaired, and
the invalid or unenforceable term or
provision will be deemed replaced by a term
or provision that is valid and enforceable
and that comes closest to expressing the
intention of the invalid or unenforceable
term or provision.
AMENDMENT; WAIVER Neither you nor the Partnership may modify,
amend, or waive the terms of this Agreement
other than by a written instrument signed by
you and a duly authorized representative of
the General Partner of the Partnership.
Either party's waiver of the other party's
compliance with any provision of this
Agreement is not a waiver of any other
provision of this Agreement or of any
subsequent breach by such party of a
provision of this Agreement.
WITHHOLDING The Partnership will reduce its compensatory
payments to you for withholding and FICA
taxes, and any other withholdings and
contributions required by law.
THIRD PARTY BENEFICIARY You understand and agree that the Company is
a third party beneficiary of this Agreement.
GOVERNING LAW The laws of the Commonwealth of Virginia
(other than its conflict of laws provisions)
govern this Agreement.
NOTICES Notices must be given in writing by personal
delivery, by certified mail, return receipt
requested, by telecopy, or by overnight
delivery. You should send or deliver your
notices to the Partnership's headquarters.
The Partnership will send or deliver any
notice given to you at your address as
reflected on the Partnership's personnel
records. You and the Partnership may change
the address for notice by like notice to the
others. You and the Partnership agree that
notice is received on the date it is
personally delivered, the date it is
received by certified mail, the date of
guaranteed delivery by the overnight
service, or the date the fax machine
confirms receipt.
PAYMENTS AND BENEFITS UPON If, at the time of your death, the
DEATH Partnership owes you any payments or other
benefits as a result of termination of your
employment, resignation, a Change of
Control, or your Disability, all of those
payments and benefits shall become due and
payable to your estate to the same extent,
at the same times, and subject to the same
terms as they would have been due and
payable to you but for your death. Further,
any payments or other benefits that become
due on account of your death shall be paid
to your estate.
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LEGAL FEES If a claim is asserted for breach of any
provision of this Agreement, you will be
entitled to recover your reasonable
attorney's fees and expenses if you prevail.
ARBITRATION Any disputes between the Partnership and you
in any way concerning your employment, the
termination of your employment, this
Agreement or its enforcement shall be
submitted at the initiative of either party
to binding arbitration in the Washington
Metropolitan area before a single arbitrator
pursuant to the Rules for Resolution of
Employment Disputes of the American
Arbitration Association, or its successor,
then in effect. The decision of the
arbitrator shall be rendered in writing,
shall be final, and may be entered as a
judgment in any court in the Commonwealth of
Virginia. The Partnership and you each
irrevocably consents to the jurisdiction of
the federal and state courts located in
Virginia for this purpose. Each party shall
be responsible for its or his own costs
incurred in such arbitration and in
enforcing any arbitration award, including
attorney's fees, provided, however, that you
will be entitled to recover your reasonable
attorney's fees and expenses if you prevail.
Notwithstanding the foregoing, the
Partnership, in its sole discretion, may
bring an action in any court of competent
jurisdiction to seek injunctive relief and
such other relief as it shall elect to
enforce your obligations in Exhibit A.
SUPERSEDING EFFECT This Agreement supersedes any prior oral or
written employment or severance agreements
between you and the Company or the
Partnership. This Agreement supersedes all
prior or contemporaneous negotiations,
commitments, agreements, and writings with
respect to the subject matter of this
Agreement. All such other negotiations,
commitments, agreements, and writings will
have no further force or effect; and the
parties to any such other negotiation,
commitment, agreement, or writing will have
no further rights or obligations thereunder.
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If you accept the terms of this Agreement, please sign in the space indicated
below. We encourage you to consult with any advisors of your choosing.
CAPITAL AUTOMOTIVE L.P.
General Partner:
CAPITAL AUTOMOTIVE REIT, a Maryland real estate
investment trust
By: /s/ XXXX X. XXXXXX
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Its: Vice President and General Counsel
-------------------------------------
SEEN & AGREED TO:
CAPITAL AUTOMOTIVE REIT
By: /S/ XXXX X. XXXXXX
--------------------------------------
Its: Vice President and General Counsel
--------------------------------------
I accept and agree to the terms of employment set forth in this Agreement:
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Dated: February 28, 2001
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EXHIBIT A
NO COMPETITION In consideration of your employment by the
Partnership and salary and benefits under
this Agreement, during the term of your
employment, and except as set forth below,
until the date two years after your
employment with the Company, the
Partnership, or their successors, assigns,
affiliates, or subsidiaries (collectively,
the "Company Group") ends for any reason
(the "Restricted Period"), you agree as
follows:
The Company is a real estate investment
trust formed to acquire real properties
owned by automobile dealerships and other
automotive-related businesses and lease the
properties to such businesses. You will not,
directly or indirectly, promote, be employed
by, lend money to, invest in, or engage in
any Competing Business within the Market
Area. That prohibition includes, but is not
limited to, acting, either singly or jointly
or as agent for, or as an employee of or
consultant to, any one or more persons,
firms, entities, or corporations directly or
indirectly (as a director, independent
contractor, representative, consultant,
member, or otherwise) that constitutes such
a Competing Business. You may own up to 3%
of the outstanding capital stock of any
corporation that is actively publicly traded
without violating this No Competition
covenant. This covenant does not preclude
you from being employed by any automobile
dealership or dealership group or other
automotive-related business that is a lessee
or prospective lessee of properties the
Company or the Partnership holds or is
actively considering acquiring.
If, during the Restricted Period, you are
offered and want to accept employment with a
business that engages in activities similar
to the Company's or the Partnership's, you
will inform the Partnership in writing of
the identity of the business, your proposed
duties with that business, and the proposed
starting date of that employment. You will
also inform that business of the terms of
this Exhibit A. The Partnership will analyze
the proposed employment and make a good
faith determination as to whether it would
threaten the Partnership's legitimate
competitive interests. If the Partnership
determines that the proposed employment
would not pose an unacceptable threat to its
interests, the Partnership will notify you
that it does not object to the employment.
You acknowledge that, during the portion of
the Restricted Period that follows your
employment, you may engage in any business
activity or gainful employment of any type
and in any place except as described above.
You acknowledge that you will be reasonably
able to earn a livelihood without violating
the terms of this Agreement.
You understand and agree that the rights and
obligations set forth in this No Competition
Section will continue for two years from the
date of termination of this Agreement and
your employment with the Partnership or the
Company Group.
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DEFINITIONS
Competing Competing Business means any service or
Business financial product of any person or
organization other than the Company Group,
in existence or then under development, that
competes or could potentially compete,
directly or indirectly, with any service or
financial product of the Company Group upon
which or with which you have worked for the
Partnership or the Company Group or about
which you acquire knowledge while working
for the Partnership or the Company Group.
Competing Business includes any enterprise
engaged in the formation or operation of
real estate investment trusts or other
entities that invest primarily in automobile
dealership or automotive-related properties
or provide real estate financing to
automobile dealerships or automotive-related
businesses. Competing Business excludes real
estate investment trusts and similar
entities that do not engage in activities
related to automotive dealerships or
automotive-related businesses.
Market Area The Market Area consists of the United
States.
NO INTERFERENCE; During the Restricted Period, you agree that
NO SOLICITATION you will not, directly or indirectly,
whether for yourself or for any other
individual or entity (other than the
Partnership or its affiliates or
subsidiaries), intentionally solicit or
endeavor to entice away from the Company
Group:
any person whom the Company Group
employs (other than as your personal
secretary) or otherwise engages to
perform services as a consultant or
sales representatives; or
any person or entity who is, or was,
within the Restricted Period, a
contractor or subcontractor of the
Company Group known to you or a lessee
or prospective lessee of properties the
Company Group holds or is actively
considering acquiring.
SECRECY
Preserving Company Your employment with the Partnership under
Confidences and, if applicable, before this Agreement
has given and will give you Confidential
Information (as defined below). You
acknowledge and agree that using,
disclosing, or publishing any Confidential
Information in an unauthorized or improper
manner could cause the Partnership or
Company Group substantial loss and damages
that could not be readily calculated and for
which no remedy at law would be adequate.
Accordingly, you agree with the Partnership
that you will not at any time, except in
performing your employment duties to the
Partnership or the Company Group under this
Agreement (or with the Partnership's prior
written consent), directly or indirectly,
use, disclose, or publish, or permit others
not so authorized to use, disclose, or
publish any Confidential Information that
you may learn or become aware of, or may
have learned or become aware of, because of
your prior or continuing employment,
ownership, or association with the
Partnership or the Company Group or any of
their predecessors, or use any such
information in a manner detrimental to the
interests of the Partnership or the Company
Group.
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Preserving Others' You agree not to use in working for the
Confidences Company Group and not to disclose to the
Company Group any trade secrets or other
information you do not have the right to use
or disclose and that the Company Group is
not free to use without liability of any
kind. You agree to promptly inform the
Partnership in writing of any patents,
copyrights, trademarks, or other proprietary
rights known to you that the Partnership or
the Company Group might violate because of
information you provide.
Confidential Information "Confidential Information" includes, without
limitation, information the Partnership or
the Company Group has not previously
disclosed to the public or to the trade with
respect to the Partnership's or the Company
Group's present or future business,
operations, services, products, research,
inventions, discoveries, drawings, designs,
plans, processes, models, technical
information, facilities, methods, trade
secrets, copyrights, software, source code,
systems, patents, procedures, manuals,
specifications, any other intellectual
property, confidential reports, price lists,
pricing formulas, customer lists, financial
information (including the revenues, costs,
or profits associated with any of the
Partnership's or the Company Group's
products or services), business plans, lease
structure, projections, prospects,
opportunities or strategies, acquisitions or
mergers, advertising or promotions,
personnel matters, legal matters, any other
confidential and proprietary information,
and any other information not generally
known outside the Partnership or the Company
Group that may be of value to the
Partnership or the Company Group but
excludes any information already properly in
the public domain. "Confidential
Information" also includes confidential and
proprietary information and trade secrets
Confidential that third parties entrust to
the Partnership or the Company Information
Group in confidence.
You understand and agree that the rights and
obligations set forth in this Secrecy
Section will continue indefinitely and will
survive termination of this Agreement and
your employment with the Partnership or the
Company Group.
EXCLUSIVE PROPERTY You confirm that all Confidential
Information is and must remain the exclusive
property of the Partnership or the relevant
member of the Company Group. All business
records, business papers, and business
documents you keep or make in the course of
your employment by the Partnership relating
to the Partnership or any member of the
Company Group must be and remain the
property of the Partnership or the relevant
member of the Company Group. Upon the
termination of this Agreement with the
Partnership or upon the Partnership's
request at any time, you must promptly
deliver to the Partnership or to the
relevant member of the Company Group any
Confidential Information or other materials
(written or otherwise) not available to the
public or made available to the public in a
manner you know or reasonably should
recognize the Partnership did not authorize,
and any copies, excerpts, summaries,
compilations, records and documents you made
or that came into your possession during
your employment. You agree that you will
not, without the Partnership's consent,
retain copies, excerpts, summaries or
compilations of the foregoing information
and materials. You understand and agree that
the rights and obligations set forth in this
Exclusive Property Section will continue
indefinitely and will survive termination of
this Agreement and your employment with the
Company Group.
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MAXIMUM LIMITS If any of the provisions of Exhibit A are
ever deemed to exceed the time, geographic
area, or activity limitations the law
permits, you and the Partnership agree to
reduce the limitations to the maximum
permissible limitation, and you and the
Partnership authorize a court or arbitrator
having jurisdiction to reform the provisions
to the maximum time, geographic area, and
activity limitations the law permits.
INJUNCTIVE RELIEF Without limiting the remedies available to
the Partnership, you acknowledge:
that a breach of any of the covenants
in this Exhibit A may result in
material irreparable injury to the
Partnership and Company Group for which
there is no adequate remedy at law; and
that it will not be possible to measure
damages for such injuries precisely.
You agree that, if there is a breach or
threatened breach, the Partnership or any
member of the Company Group will be entitled
to obtain a temporary restraining order
and/or a preliminary or permanent injunction
restraining you from engaging in activities
prohibited by any provisions of this Exhibit
A or such other relief as may be required to
specifically enforce any of the covenants in
this Exhibit A.
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