EMPLOYMENT AGREEMENT
FOR XXXXX X. XXXXXX
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of July 2, 1998, by
and between Xxxxxxxx Xxxx Company, a Delaware corporation ("Employer"), and
Xxxxx X. Xxxxxx, an individual residing in North Carolina ("Employee").
R E C I T A L S
X. Xxxxxx Enterprises, Inc., a North Carolina corporation ("FE"),Xxxxxx &
Associates, Inc., a North Carolina corporation ("FA"), Employee, Employer, TCSE
Realty Services, Inc., a Delaware corporation and wholly-owned subsidiary of
Employer ("Buyer"), and Media Advertising & Design, Inc., a North Carolina
corporation, have entered into an Asset Purchase Agreement dated as of the date
hereof (the "Purchase Agreement"), pursuant to which Buyer will purchase
substantially all of the commercial real estate services assets of FA and
certain assets of FE.
B. The Board of Directors of Employer (the "Board") has determined that
it is in the best interests of Employer and its stockholders to employ Employee
on the terms and conditions set forth herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the respective agreements and covenants
set forth herein and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agrees as follows:
1. EMPLOYMENT PERIOD. Subject to the terms and conditions set forth in
this Agreement, including the rights of Employer and Employee to terminate
Employee's employment under Section 12, Employer hereby employs Employee, and
Employee hereby accepts such employment from Employer, for a specified term (the
"Employment Period") commencing on the date hereof (the "Effective Date") and,
unless earlier terminated or extended in accordance with the provisions of this
Agreement, expiring on the fifth anniversary of the Effective Date.
2. EXTENT OF SERVICES. During the Employment Period, Employee shall
devote a substantial majority of his business time, attention and effort to the
business of Employer in order to discharge his duties in a manner consistent
with any and all reasonable policies and guidelines as may be established by
Employer from time to time; provided, however, that Employer expressly
recognizes that Employee is (i) a very substantial investor in commercial real
estate projects; (ii) an officer and director in FE, Xxxxxx-Xxxxx, Inc., Xxxxxx
Capital Development, Inc. and a number of other companies owned, directly and
indirectly, by FE (collectively, the "Xxxxxx Entities"); and (iii)
a director, member or otherwise active in a number of civic and governmental
agencies; and that Employee is permitted to continue said activities
(collectively, the "Employee's Outside Activities"), provided that Employee's
Outside Activities shall not violate any provision of this Agreement or the
provisions of the policy regarding Employee's ownership of commercial real
estate set forth on EXHIBIT A hereto. Prior to investing in any real estate
asset other than retail projects as to which Employer, or its affiliates, are
required to extend a right of first refusal pursuant to that certain Merchant
Build/Right of First Refusal Agreement (the "Merchant Build Agreement")
between Employer and Employee dated as of the date hereof, Employee shall
notify in writing the Employer's Administrative Committee (the
"Administrative Committee") of his intention to make such investment. If the
Administrative Committee fails to object to Employee's planned investment
within the 10-day period following receipt of such notice from Employee,
Employee shall be entitled to make such investment without further
consultation with, or involvement by, the Administrative Committee or
Employer. If, however, the Administrative Committee gives Employee written
notice during said 10-day period of its disapproval of such planned
investment, the Employee may make such investment if he wishes, subject to
the Employer's right, AS ITS SOLE AND EXCLUSIVE REMEDY, exercisable at any
time within thirty (30) days after notice that Employee shall make any
unapproved investment, to terminate Employee's employment.
3. DUTIES. Employee shall be employed during the Employment Period as an
Executive Vice President of Employer and the President of Employer's regional
mall business and its interests in Chile (if, as and when Employer acquires any
such interests), with general responsibility for overseeing Buyer's regional
mall management, leasing, development and construction management business;
generating investment opportunities, development opportunities and service
contracts for such regional mall business; expanding the operations of Chile;
and developing strategies to enter other planned and approved South American
markets. Employer may also ask Employee to perform other functions and
responsibilities in keeping with Employee's reputation, experience and
expertise, including but not limited to management of major customer
relationships, business development and duties related to the integration of the
Business with the business operations of Employer. Employee shall serve on the
Board of Directors of Employer as a Class III director and as a member of the
Employer's National Leadership Council when established. In such capacities,
Employee shall perform the duties associated with such positions, subject to the
general direction, approval and control of the Board and Employer's Chief
Executive Officer (such officer or such officer's designee being referred to in
this Agreement and the exhibits hereto as the "Chief Executive Officer").
Employee shall perform his duties faithfully, competently, in compliance with
all laws and to the best of his ability.
4. COMPENSATION. (a) BASE SALARY. Subject to the other terms and
conditions of this Agreement and as compensation for the performance of his
services hereunder, during the Employment Period, Employer shall pay Employee
fixed cash compensation at an initial annual rate of $200,000 (such amount is
referred to herein as "Base Salary"). Base Salary shall accrue and be payable
in accordance with the payroll practices of Employer for executives in effect
from time to
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time during the Employment Period. All such payments shall be subject to
deduction and withholding authorized or required by applicable law. The Base
Salary may be increased at the sole discretion of the Employer, and any
increase in Base Salary shall then become the Base Salary payable under this
Agreement.
(b) OTHER COMPENSATION. During the Employment Period, Employee will be
eligible to receive incentives and other forms of compensation to be determined
from time to time by Employer and agreed to by Employee.
5. HEALTH INSURANCE; RETIREMENT BENEFITS; WELFARE BENEFITS. During the
Employment Period, Employer shall provide Employee with such health insurance as
is generally made available from time to time by Employer to Employer's
executive officers. Employer will use its best efforts to carry over balances
relating to deductibles and out-of-pocket expenses existing as of the date of
the closing of the transactions contemplated by the Purchase Agreement under
Employee's health insurance plan in effect prior to the Effective Date. During
the Employment Period, Employee shall be entitled to participate in Employer's
401(k) plan, and Employee shall receive credit for past service with FA with
respect to the ability to participate in Employer's 401(k) plan and the ability
to receive paid vacation leave (as opposed to vacation pay). During the
Employment Period, Employer shall provide Employee with such other welfare
benefits as are generally made available from time to time by Employer to
Employer's executive officers.
6. EXPENSE REIMBURSEMENT. Employer shall reimburse Employee for all
reasonable out of pocket expenses related to travel, entertainment and
miscellaneous expense incurred in carrying out his duties under this Agreement.
Reimbursement shall only be made against an itemized list of such expenditures
signed by the Employee in such form as required by the Employer and consistent
with Employer's company policy.
7. KEY-MAN INSURANCE. At any time during the term of this Agreement,
Employer shall have the right to insure the life of Employee for Employer's sole
benefit, and to determine the amount of insurance and the type of policy.
Employee shall cooperate with Employer in obtaining such insurance by submitting
to physical examination, by supplying all information required by the insurance
company and by executing all necessary documents. Employee shall incur no
financial obligation by executing any required document and shall have no
interest in any such policy.
8. CONFIDENTIALITY. Employee acknowledges that he is being employed by
Employer under this Agreement in a capacity in which he will receive or
contribute "Confidential Information" (as defined herein). "Confidential
Information" shall mean business or technical information, including but not
limited to any formula, pattern, program, device, compilation of information,
method, technique or process, customer list, pricing arrangements, budgets and
all undisclosed information relating to acquisitions and compensation that (i)
derives independent actual or potential commercial value from not being
generally known or readily ascertainable through independent
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development or reverse engineering by persons who can obtain economic value
from its disclosure or use; and (ii) is the subject of efforts by Employer or
its subsidiaries that are reasonable under the circumstances to maintain its
secrecy. Employee hereby acknowledges and agrees that all Confidential
Information concerning the business or affairs of Employer or its
subsidiaries which Employee may acquire in connection with or as a result of
his association with Employer and any of its subsidiaries was and shall be
received in strict confidence and shall be used only for the purpose of
performing his duties pursuant to this Agreement, and that no such
Confidential Information shall be otherwise used or disclosed by Employee
during or after the term of this Agreement without the prior written consent
of Employer. Upon termination of Employee's employment hereunder, all
Confidential Information and other documents, records, notebooks, customer
lists, business proposals, contracts, agreements and other repositories
containing information concerning Employer or its subsidiaries or the
business of Employer or its subsidiaries (including all copies thereof) in
Employee's possession, whether prepared by Employee or others, shall remain
confidential and remain with or be returned to Employer. Employee's
obligations under this Section 8 are in addition to, and do not supersede,
Employee's obligations under applicable law to maintain the confidentiality
of Employer's Confidential Information.
Additionally, Employee is subject to the Special Trading Policy of Employer
and xxxxxxx xxxxxxx policies.
9. NONCOMPETITION. Employee controls FE and FA, each of which is a party
to the Purchase Agreement. In exchange for (i) the covenants made by Buyer in
the Purchase Agreement, (ii) the receipt of the consideration paid to FE and FA
as described in the Purchase Agreement, and (iii) the covenants and agreements
made by Employer in this Agreement, Employee covenants and agrees that, for a
period beginning on the Effective Date and ending on the later to occur of
(A) the fifth anniversary of the Effective Date and (B) the first anniversary of
the date (the "Date of Termination") that Employee's employment relationship
with Employer is terminated, he will not, within the Territory, directly or
indirectly, Compete with Employer. For the purposes of this Section 9, the
following terms shall have the meanings indicated below:
(a) The term "Territory" shall mean the collective reference to Chile, the
District of Columbia, and the states of Texas (but only after FE no longer owns,
directly or indirectly, any interest in Xxxxxx-Xxxxx, Inc.), Georgia, Florida,
Tennessee, Ohio, Pennsylvania, New Jersey, Maryland, Virginia, North Carolina,
South Carolina, Arizona, Wisconsin and West Virginia.
(b) The term "Compete" shall mean engaging in the business of providing or
attempting to provide commercial property leasing, management, brokerage,
development, and other real estate services ("Services") for others, either
alone or with any individual, partnership, corporation, cooperative or
association; excluding however, the following activities, all of which are not
prohibited by Employee's covenant hereunder:
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(i) providing Services, either directly or indirectly through any entity
owned or controlled by Employee (an "Employee Affiliate"), to any and
all Related Properties (as defined below) on which Employer does not
(voluntarily or involuntarily) provide Services. For purposes hereof,
"Related Properties" shall mean all properties in which Employee or
any Employee Affiliate owns at least a ten percent (10%) equity,
partnership or similar interest or has invested $1 million or more in
equity capital other than any properties which Employee has assigned
or granted to Employer the right to service; provided that, with
respect to the Related Properties, Employer shall have the right to be
the exclusive service provider subject to conditions described in
those agreements related to the Purchase Agreement; and
(ii) indirectly controlling the business of Xxxxxx-Xxxxx, Inc., a Texas
corporation which constitutes an Employee Affiliate ("Xxxxxx-Xxxxx"),
serving as an officer and director of Xxxxxx-Xxxxx, and actively
participating in the business of Xxxxxx-Xxxxx in the State of Texas;
provided, however, that upon any sale of the stock or substantially
all of the assets and liabilities of Xxxxxx-Xxxxx, Inc., Employee
shall no longer be permitted to engage in any activities described in
this clause (ii); and provided, further, that Employee realizes that
Employer and Xxxxxx-Xxxxx compete directly in all lines of business
and Employee will not use any Confidential Information in connection
with his efforts on behalf of Xxxxxx-Xxxxx. Employee will work in
good faith to manage this conflict of interest. Employee shall use
commercially reasonable efforts to cause FE to sell its interest in
Xxxxxx-Xxxxx after the Effective Date.
(c) The words "directly or indirectly" as they modify the word "Compete"
shall mean: (i) acting as an agent, representative, consultant, officer,
director or employee of any entity or enterprise which is Competing (as defined
in this Section 9) with the business of Employer; (ii) participating in any such
Competing entity or enterprise as an owner, partner, limited partner, joint
venturer, creditor or shareholder (other than as permitted by paragraph 9(b) or
as a holder of less than 1% of the common stock of any publicly traded
corporation); or (iii) communicating to any such competing entity or enterprise
any Confidential Information concerning any past, present or identified
prospective client or customer of, or supplier to, Employer.
(d) With the objective of obtaining the successful implementation of the
foregoing restrictive covenant, Employer and Employee agree that in the event
such restrictive covenant should fail for lack of reasonableness, such covenant
and the obligation contained therein shall be enforced to the maximum extent
that such covenant and obligation may be enforced and still be held to be
reasonable.
10. NON-SOLICITATION. (a) EMPLOYEES AND CUSTOMERS. Except as otherwise
provided herein, for a period beginning on the Effective Date and ending on the
later to occur of (i) the fifth anniversary of the Effective Date and (ii) the
date which is 12 months after the Date of Termination,
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Employee shall not (A) induce or attempt to induce any employee of Employer
or its subsidiaries to terminate, or in any way interfere with, the
relationship between Employer or its subsidiaries and any such employee, (B)
hire directly or through another entity any person who, at any time during
the 12-month period beginning on the Date of Termination, was employed by
Employer or its subsidiaries in the Territory, or (C) induce or attempt to
induce any existing customer or other business relation of the Employer or
its subsidiaries to terminate any existing real estate services agreements
with the Employer or its subsidiaries, or materially interfere with any
existing contractual relationship between any such customer or business
relation and the Employer or its subsidiaries or denigrate the ability of
Employer or its subsidiaries to competently discharge their obligations to
existing customers under existing real estate services agreements. Employer
recognizes that Employee will continue to use some of Employer's employees
who currently work for FA and its subsidiaries to assist Employee in
evaluating investments in real estate properties. Notwithstanding the
foregoing, upon 30 day's advance written notice to Employer or with the
written consent of Employer, Employee shall be permitted to hire any employee
of Employer (i) who, immediately prior to the date hereof, was an employee of
FA or any of its wholly-owned subsidiaries, and (ii) who resigns Employer's
employment without being solicited or encouraged to do so by Employee.
(b) ASSETS. For a period beginning on the Effective Date and ending on
the later to occur of (i) the fifth anniversary of the Effective Date and
(ii) the first anniversary of the Date of Termination, Employee shall not
solicit the real estate services work for any property managed, leased, improved
or developed by Employer or any of its subsidiaries in the Territory at any time
during the twelve (12) month period beginning on the Date of Termination except
as provided in Section 9(b)(i) above.
11. INJUNCTIVE RELIEF. In the event of a breach or threatened breach by
Employee of any of the provisions of Sections 8, 9 or 10 hereof, Employer shall
be entitled to specific performance, injunctive relief or such other legal
and/or equitable remedies as may be appropriate. Nothing contained in this
Section 11 shall be construed as prohibiting Employer from pursuing any other
remedies available to it for such breach or threatened breach of any of the
terms and provisions of this Agreement, nor limiting its right to the recovery
of damages from Employee or any other person or entity for the breach or
violation of any provision of this Agreement, whether such remedy be at law or
in equity.
12. TERMINATION. (a) Upon written notice, Employer may immediately
terminate Employee's employment for Cause; provided that Employee shall have a
period of 30 days after receipt of such notice to cure the breach giving rise to
any termination for Cause if such breach can be reasonably remedied in the
reasonable opinion of Employer. In the event of a termination for Cause,
Employee shall be paid only that portion of the Base Salary accrued through the
date of such termination notice (less all amounts required to be withheld or
deducted therefrom), and Employee shall forfeit all rights to all compensation
which would otherwise be due to him under this
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Agreement or to which he would otherwise be entitled. As used in this
Agreement, "Cause" means termination of Employee's employment because of:
(i) Employee's conviction of, or plea of NOLO CONTENDERE to, a felony or
crime involving moral turpitude; (ii) Employee's personal dishonesty; willful
misconduct; or willful violation of any law, rule or regulation having direct
bearing on Employee's duties performed on behalf of Employer; (iii)
Employee's commission of material mismanagement in the conduct of his duties
as assigned to him by Employer; (iv) Employee's intentional failure to
perform the duties as assigned to him by Employer; (v) Employee's willful
violation of a significant written policy of Employer applicable to Employee;
or (vi) Employee's abuse of or addiction to an illegal substance. The
definition of "Cause" set forth herein shall override the definition of
"Cause" as set forth in Employer's Long-Term Incentive Plan.
(b) In the event that Employee terminates his employment with Employer
other than for Good Reason (as defined below) prior to the fifth anniversary of
the Effective Date, Employee shall be paid only that portion of the Base Salary
accrued through the date of termination (less all amounts required to be
withheld or deducted therefrom), and Employee shall forfeit all rights to all
compensation which would otherwise be due to him under this Agreement or to
which he would otherwise be entitled. Any such termination of employment by
Employee, and the payment of Base Salary pursuant to this Section 12(b) shall be
Employer's sole remedy other than the continued right to enforce the
covenant-not-to-compete and non-solicitation provisions of this Agreement.
(c) In the event that Employee terminates Employee's employment for Good
Reason or Employer terminates Employee's employment other than for Cause or
disability under Section 12(e), Employee shall be paid only (i) that portion of
the Base Salary accrued through the date of such termination, (ii) Base Salary
for a period of twelve (12) months in accordance with the payroll practices of
Employer for executives in effect from time to time (less all amounts required
to be withheld or deducted therefrom); provided, however, that Employee shall
only be entitled to receive the payment described in this clause (ii) for as
along as Employee complies with the covenants and agreements set forth in
Section 9, and (iii) an amount equal to the cost of continuing Employee's health
benefit coverage under the Consolidated Omnibus Budget Reconciliation Act of
1985 ("COBRA") for a period of one year beginning on the Date of Termination.
Employer shall be entitled to withhold or deduct any amounts required to be
withheld or deducted from any payment described in this Section 12(c).
(d) If Employee dies prior to the fifth anniversary of the Effective Date,
this Agreement shall terminate, and Employer shall pay to the estate of Employee
that portion of the Base Salary which would otherwise be payable to Employee
through the end of the month in which Employee's death occurs, together with a
death benefit payment, if any, to which Employee's estate is entitled in
accordance with Employer's policies, plans and procedures relating to death
benefits in effect from time to time. Employer shall be entitled to withhold or
deduct any amounts required to be withheld or deducted from any payment
described in this Section 12(d).
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(e) Employer may terminate this Agreement if, prior to the fifth
anniversary of the Effective Date, Employee becomes disabled. For purposes of
this Agreement, Employee shall be deemed to have become disabled when Employer
determines in good faith that Employee is disabled pursuant to Employer's
policies and procedures relating to disability benefits in effect from time to
time. In the event Employer terminates this Agreement due to the disability of
Employee, Employee shall be paid only (i) that portion of the Base Salary which
would otherwise be payable to Employee through the end of the month of such
termination, and (ii) such disability benefit payments, if any, for which
Employee is eligible in accordance with Employer's policies, plans and
procedures relating to disability benefits in effect from time to time.
Employer shall be entitled to withhold or deduct any amounts required to be
withheld or deducted from any payment described in this Section 12(e).
(f) The Employee's employment may be terminated by Employee during the
Employment Period for no reason or Good Reason; provided, however, that the
Employee agrees not to terminate his employment for Good Reason unless (x)
Employee has given Employer at least 30 days' prior written notice of his intent
to terminate his employment for Good Reason, which notice shall specify the
facts and circumstances constituting Good Reason, and (y) Employer has not
remedied such facts and circumstances constituting Good Reason within such
30-day period. For purposes of this Agreement, "Good Reason" shall mean the
occurrence of any of the following without Employee's written consent:
(i) any action taken by Employer which results in a material
diminution in the position, authority, duties or responsibilities of
Employee as contemplated in Section 3, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith and
which is remedied by Employer within 30 days after receipt of notice
thereof given by Employee;
(ii) any termination or material reduction of a material benefit
under any insurance, retirement or welfare plan in which Employee
participates unless (a) there is substituted a comparable benefit that is
economically substantially equivalent to the terminated or reduced benefit
prior to such termination or reduction, or (b) benefits under such
insurance, retirement or welfare benefit plans are terminated or reduced
with respect to all of Employer's executives previously granted benefits
thereunder; or
(iii) any material breach by the Employer of this Agreement.
13. VACATION. During the term of this Agreement, Employee shall be
entitled to an annual vacation leave of five weeks at full pay. The time for
such vacation shall be selected by Employee and reasonably approved by Employer,
and it must be taken in each calendar year or it is forfeited.
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14. SEVERABILITY. Subject to Section 9 hereof, in the event that any
provision contained herein shall be held to be invalid, illegal or unenforceable
for any reason, such invalidity, illegality or unenforceability shall not affect
any other provision hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
15. WAIVER. No delay or omission by either party hereto in exercising any
right or power hereunder shall impair such right or power or be construed as a
waiver thereof. A waiver by either of the parties hereto of any of the
covenants to be performed by the other or any breach thereof shall not be
construed to be a waiver of any succeeding breach thereof or of any other
covenant herein contained. All remedies provided for in this Agreement shall be
cumulative and in addition to and not in lieu of any other remedies available to
either party at law, in equity or otherwise.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter thereof, and there
are no representations, understandings or agreements related hereto which are
not fully expressed herein, all prior agreements with respect to the subject
matter hereof being expressly superseded hereby. To the extent that this
Agreement contains terms and provisions dealing with compensation or other
benefits and Employee would, in the absence of this Agreement, otherwise be
entitled to similar benefits under Employer's policies and guidelines applicable
to its executives (including but not limited to salary, severance and vacation
benefits), the terms of this Agreement shall apply, and such benefits provided
to Employee under this Agreement shall be in substitution for, and not in
addition to, such other benefits that Employee would otherwise be entitled to
receive. No change, waiver or discharge hereof shall be valid unless in writing
and signed by the party against which such change, waiver or discharge is sought
to be enforced.
17. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina (without giving effect
to principles of conflicts of law).
18. MULTIPLE COUNTERPARTS. This Agreement may be executed in multiple
identical counterparts, each of which shall be deemed an original, and all of
which taken together shall constitute but one and the same instrument. In
making proof of this Agreement, it shall not be necessary to produce or account
for more than one counterpart executed by the party sought to be charged with
performance hereunder.
19. HEADINGS AND PRONOUNS. The subject headings of the sections contained
herein are inserted for convenience only and shall not be considered in
interpreting any term or provision hereof. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular or
plural as the identity of the entities or persons referred to may require.
20. BINDING ARBITRATION. (a) ELECTION. In the event of a contested claim
or other matter in dispute under this Agreement, either of the parties may, by
notice to the other party (a "Demand
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to Arbitrate"), elect that the matter shall be settled by arbitration in
accordance with the National Rules of the American Arbitration Association
for Resolution of Employment Disputes ("AAA") by three (3) arbitrators, who
shall administer the arbitration. The costs and expenses of any such
arbitration shall be borne by the parties as determined by the arbitrators.
Any such election to arbitrate shall be binding on all parties to this
Agreement; provided, however, that nothing set forth in this Section 20 shall
be deemed to be a waiver by Employer of its rights to seek specific
performance, injunctive relief or such other legal and/or equitable remedies
as may be appropriate to maintain the STATUS QUO pending arbitration among
the parties as to any alleged breach or threatened breach by Employee of any
of the provisions of Section 8, 9 or 10 hereof (as contemplated in Section 11
hereof).
(b) ARBITRATORS. Employer shall appoint one arbitrator, and Employee
shall appoint one arbitrator. If either party fails to appoint an arbitrator
within thirty (30) days from the date a Demand to Arbitrate was given, AAA shall
make the appointment of the arbitrator. The two (2) arbitrators thus appointed
shall appoint the third arbitrator. If such two (2) arbitrators fail to appoint
the third arbitrator within sixty (60) days from the date a Demand to Arbitrate
was given, AAA shall make the appointment of the third arbitrator. Should any
of the arbitrators so appointed die, resign, refuse or become unable to act
before a decision is given, the vacancy shall be filled by the method set forth
in this sub-paragraph (b) for the original appointment. The place of
arbitration shall be Charlotte, North Carolina.
(c) BINDING EFFECT. The award and all decisions of the arbitrators shall
be final and binding upon the parties and there shall be no appeal therefrom to
any court except as expressly permitted by the law of the place of arbitration.
Judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof. In the event of any conflict between the rules of
the arbitral authority and this Section 20, the provisions of this Section 20
shall govern.
21. SURVIVAL. Employee understands and agrees that his covenants and
agreements contained in Sections 8, 9, 10 and 11 hereof are the essence of this
Agreement and without the agreement of Employee to such covenants, Employer
would not employ him and divulge to him its Confidential Information and other
proprietary information developed at great cost to Employer. The continuation
of the employment of the Employee pursuant to the terms hereof is not a
condition to the survival of the covenants and provisions contained in such
sections. All obligations and duties of Employee and, subject to the specific
terms of each obligation contained herein, all rights of Employer as set forth
in said sections, shall survive the termination or expiration of this Agreement.
22. ATTORNEY'S FEES. If any civil action or arbitration, whether at law
or in equity, is necessary to enforce or interpret any of the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorney's fees,
court costs and other reasonable expenses of litigation, in addition to any
other relief to which such party may be entitled.
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23. NOTICE. For the purposes of this Agreement:
(a) Notices and all other communications to Employer provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered, telecopied with telephonic confirmation (with original
copy sent by first class mail, postage prepaid, or delivered by hand, messenger
or overnight courier) or on the third day after being mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
To Employer:
Xxxxxxxx Xxxx Company
0000 Xxxx Xxxxxx
Xxxxx 0000
Attn: General Counsel
with a further copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
or to such other address as Employer may have furnished to Employee in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
(b) Notices and all other communications to Employee provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered as follows:
To Employee:
Xxxxx X. Xxxxxx
000 Xxxx Xxxxx Xxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Personal and Confidential
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with a copy to:
Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
or to such other address as Employee may have furnished to Employer in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
24. AMENDMENT. This Agreement (including the Exhibits hereto) may not be
amended or modified at any time except by a written instrument approved by the
Board (or a committee thereof) and executed by the Employer and the Employee.
25. EFFECTIVENESS OF AGREEMENT. Employer and Employee agree that if the
Purchase Agreement is terminated in accordance with its terms, this Agreement
shall terminate and to the parties hereto shall have no obligations to any party
hereunder. Each provision of this Agreement shall, unless otherwise expressly
stated by its own terms, survive termination of Employee's employment hereunder.
[Signatures begin on next page.]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement this 2nd day of July, 1998, to be effective as of the Effective Date.
EMPLOYER:
XXXXXXXX XXXX COMPANY
By:/s/ Xxxxx X. XxXxxxx
--------------------------------
Name: Xxxxx X. XxXxxxx
------------------------------
Title: Executive Vice President and
-----------------------------
General Counsel
EMPLOYEE:
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
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[Signature page to HJF Employment Agreement.]
-13-
EXHIBIT A
For purposes of this policy, "commercial real estate" shall mean all real estate
other than residential real estate owned primarily for Employee's residential
use.
Any service business arising from Employee's ownership of commercial real
estate must, at Employer's option, be transacted by Employer, assuming that
Employer is qualified to provide those services and subject to Employee's
ability to control the service provider selection decision. Fees paid to
Employer will be at market rates. If Employee's ability to acquire a
particular commercial real estate asset is impaired by designating Employer
as service provider, then Employee may hire an alternative provider with 5
days prior written notice to Employer.
Employee may not buy real estate offered for sale by Employer without full
disclosure to Employer's customer.
Any equity investment in investment real estate undertaken by Employee must
be paid in cash, not exchanged for commissions or fees that would
customarily have been paid to Employee in connection with that transaction.
Employee must be sensitive to potential conflicts of interest with
customers of Employer when considering real estate investments and endeavor
to discuss prospective investments with Employer for this purpose.
Employer's sole and exclusive remedy for any violation of this policy,
exercisable at any time within thirty (30) days after notice that Employee
has made such violation, is to terminate Employee's employment.
