EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of August, 2005, between X.X. Xxxx,
Inc., a New York corporation with offices and principal place of business
located at 0 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter called the
"Company"), and Xxxx Xxxxxxxxxx (hereinafter called "Xxxxxxxxxx" or "Employee")
WHEREAS, Xxxxxxxxxx has rendered distinguished and dedicated service to
the Company for many years, currently serves as a Vice President and Treasurer
and his services have continuing value to the Company; and
WHEREAS, the Company desires to assure continuity of the services of
Xxxxxxxxxx as a Vice President and Treasurer by means of an Employment Agreement
and Xxxxxxxxxx is willing to enter into such Agreement upon the terms and
conditions hereinafter set forth; and
WHEREAS, the protection of the Company's Confidential Information (as
defined hereinafter) is vital to the continued successful operation of the
Company's business.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, it is agreed as follows:
1. Nature of Services and Duties:
(A) The Company hereby employs Xxxxxxxxxx and Xxxxxxxxxx
accepts employment as a Vice President and Treasurer of the Company.
(B) Xxxxxxxxxx shall devote his best efforts and substantially
all of his business time to advance the interests
of the Company, subject to the control of the Board of Directors, and subject to
and bound by all personnel and corporate policies and procedures applicable to
employees of the Company. At all times he shall be furnished office
accommodations adequate for the performance of his duties and compatible with
his position as a Vice President and Treasurer of the Company.
2. Term of Employment:
(A) Greenblatt's employment hereunder shall commence as of
August 1, 2005 and shall end at the close of business on July 31, 2008, subject
to earlier termination as provided in this Agreement in the event of
Greenblatt's retirement or permanent disability (the "Term of Employment").
Leave of absence for any period of time authorized by the Board of Directors of
the Company shall not be deemed an interruption, cessation or termination of the
terms of Greenblatt's employment.
(B) Xxxxxxxxxx may, at his option, elect to retire at any time
upon at least ninety (90) days prior written notice to the Company.
(C) Nothing in this Agreement shall prevent the Company from
terminating the employment at any time for cause. The following events shall
constitute cause: (i) fraud, criminal conduct, misappropriation, embezzlement or
the like; or (ii) willful misconduct of the Employee in connection with the
performance of his duties under this Agreement; or (iii) violation of any
material provision of this Agreement.
3. Compensation:
(A) The Company agrees to compensate Xxxxxxxxxx for his
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services, and Xxxxxxxxxx agrees to accept as compensation for his services,
during the period of his employment hereunder or any renewal thereof, the sum of
not less than One Hundred Sixty-Five Thousand ($165,000.00) Dollars per annum,
payable in equal monthly or other installments in accordance with the general
practice of the Company with respect to Senior Executives. Xxxxxxxxxx shall be
entitled to such increases and additional payments as may be determined from
time to time by the Board of Directors in its discretion.
(B) To the extent to which he may qualify, he shall, in
addition, be entitled to participate in all plans now or hereafter adopted for
Executives or employees, including, but not limited to, pension, group insurance
or medical plans, and in any other employee benefit plans, whether similar to or
different from any of the foregoing categories, offered or made available by the
Company.
(C) The Company shall reimburse Xxxxxxxxxx upon submission of
vouchers by him, for all out-of-pocket expenses for entertainment, travel,
meals, hotel accommodations and the like, incurred by him in the interest of the
business of the Company.
(D) The Company shall have the right, at its option, to
allocate payment of Greenblatt's compensation or expenses, or any part thereof,
among its subsidiaries or divisions, if any, to the extent applicable as its
Board of Directors may from time to time direct.
4. Restrictive Covenant:
(A) Xxxxxxxxxx acknowledges that: (i) due to the nature
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of his duties, he has and will continue to have access to and will acquire
confidential information relating to the business and operation of the Company;
and (ii) Greenblatt's expertise and background would enable him to compete with
the business of the Company, which is the ownership, control, development,
management and operation of real property;
(B) Xxxxxxxxxx shall not at any time, either during or after
his employment, directly or indirectly, divulge, disclose or communicate to any
person or entity, any non-public information affecting or relating to the
business of the Company (the "Confidential Information"), including without
limitation the names and addresses of its tenants, sub-tenants and prospective
or potential tenants, marketing information, information regarding the nature
and extent of its ownership interests in real property, leasing information,
including, but not limited to, rents, expiration dates, rights of renewal, or
any other lease terms, costs and expenses of operation, income, its manner of
operation, its plans, its financial arrangements or condition, its policies and
procedures, or contracts and other relationships with and information regarding
other individuals or entities, including, but not limited to employees and
independent contractors, regardless of whether any or all of the foregoing
matters would be deemed confidential material or important, the parties
stipulating that as between them such information is confidential, important and
gravely affects the successful conduct of the business of the Company and its
goodwill and that any breach of this Section is a material breach of this
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Agreement. Upon Greenblatt's termination of employment, he shall immediately
deliver to the Company all of the Company's Confidential Information and shall
not retain in any copies of the Company's Confidential Information without the
express prior written consent of the Company.
(C) In consideration of the amounts paid and payable pursuant
to this Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Xxxxxxxxxx hereby agrees as
follows:
1. Except under and pursuant to this Agreement, or as
otherwise consented to in writing by the Company from time to time, during the
Term of Employment, Xxxxxxxxxx shall not at any time or place whatsoever, either
directly or indirectly, engage or be interested as owner, stockholder, partner,
member director, officer, employee, independent contractor or otherwise, (either
with or without compensation), in any person, business or entity which is
directly or indirectly in competition with the Company, or any of its
subsidiaries. This provision shall not be construed to prohibit investment by
Xxxxxxxxxx in publicly traded securities.
2. During the twenty-four (24) month period
immediately following the termination of Greenblatt's employment, without regard
to the reason for such termination, Xxxxxxxxxx shall not directly or indirectly,
whether on Greenblatt's own account or as an employee, partner, member, manager,
officer or director of, or consultant or independent contractor to, or holder of
more than five (5%) percent of the equity interest in
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any other entity, within a fifteen (15) mile radius of the then principal place
of business of the Company, do any of the following:
(a) enter into or engage in any business which is competitive
with the Company's Business.
(b) induce any person employed by the Company, to join
a corporation, partnership, joint venture, limited liability company or
other entity in any such capacity, directly or indirectly, if such business is
competitive with that of the Company or if such business, or its successors or
assigns, competes with the Company or if such business, or its successors or
assigns, solicits tenants of the Company.
(c) employ, directly or indirectly, any of the Company's
Confidential Information in whole or in any material part.
(D) For the purposes of this Agreement, a business will be
deemed competitive with the Company's Business if it engages in any manner in
the ownership, control, development, management and/or operation of real
property.
(E) Xxxxxxxxxx hereby agrees that, in the event of his breach
of any of the covenants set forth in this Section 4, the Company shall be
entitled to obtain appropriate equitable relief, including, without limitation,
a permanent injunction or similar court order enjoining Xxxxxxxxxx from
violating any of such provisions, and that pending the hearing and the decision
on the application for permanent equitable relief, the Company shall be entitled
to a temporary restraining order and a preliminary
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injunction, all at Greenblatt's expense, including reasonable attorney's fees
and disbursements, provided, however, no such remedy shall be construed to be
the exclusive remedy of the Company and any and all such remedies shall be held
and construed to be cumulative and not exclusive of any rights or remedies,
whether at law or in equity, otherwise available under the terms of this
Agreement, at common law, or under federal, state or local statutes, rules and
regulations.
(F) Each provision contained in this Section 4 is intended to be
independent of the others, and shall survive and shall remain binding and
enforceable, notwithstanding that any of the other provisions may be declared
invalid, void or unenforceable and, in the case of the geographical and time
limitations, may be modified in geographical scope or duration by any court of
competent jurisdiction to the extent necessary to make such provision valid and
enforceable.
(G) The provisions of this Section 4 shall survive the
termination of Greenblatt's employment.
(H) If any present or future statute of the State of New York
provides protections or remedies relating to Confidential Information, which are
greater than the protections and remedies provided by this Agreement, then the
Company shall also have the benefit of such additional statutory protections and
remedies.
(I) The provisions of this Section 4 shall not apply to work
of any kind performed by the Employee for any entity which is affiliated or
related to the Company, including, but not limited to Xxxxxxxxx Enterprises,
Inc.
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5. Disability:
(A) If Xxxxxxxxxx becomes permanently disabled (as defined
herein) during the period of his employment, the Company may terminate his
employment on not less than three (3) months' prior notice, but the Company
shall nevertheless pay Xxxxxxxxxx his compensation, as then in effect, for the
balance of his Term of Employment.
(B) Xxxxxxxxxx shall be deemed permanently disabled if either
(i) he and the Company so agree, or (ii) after a period of ninety (90) days
during which Xxxxxxxxxx is continuously unable, as a result of any physical or
mental ailment, to perform his major duties and responsibilities as provided in
Section 1, he is, either at his (or on his behalf) or the Company's request,
examined by New York University Medical Center, New York, New York, or any
successor organization, or by any other Hospital in the City of New York of
comparable stature, mutually agreed upon (hereinafter called the "Hospital"),
and the Hospital certifies that, in the opinion of its Medical Examiners,
Greenblatt's health is such that, for a period of ninety (90) days or more from
that date, Xxxxxxxxxx is and probably will be incapacitated, physically or
mentally, from performing, or that it would seriously impair his health to
perform, his major duties and responsibilities as provided in Section 1 hereof.
If, for any reason, the Hospital cannot or refuses to pass on such question,
such certificate may be obtained from a majority of a Board of three (3)
licensed physicians, members of the American Medical Association (New York City
Division), one (1) to be chosen by
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Xxxxxxxxxx or on his behalf, one (1) by the Company, and the third (3rd) by the
other two (2), if they can agree thereon, otherwise by the then President of the
New York State Medical Association. The certificate of two (2) of the said
physicians shall be final and binding upon both parties hereto.
6. Assignability of This Agreement:
This Agreement is personal and shall not be assignable by
Xxxxxxxxxx, and its terms, covenants and conditions shall be binding upon and
inure to the benefit of the Company, or its successors and assigns.
7. Interpretation of This Agreement:
This Agreement shall be construed and enforced in accordance
with, and governed by, the laws of the State of New York, applicable to
agreements made and to be performed in New York. This Agreement supersedes all
prior Agreements and understandings relating to the subject matter hereof, and
this Agreement may not be modified or amended or any term or provision thereof
waived or discharged except in writing signed by the party against whom such
amendment, modification, waiver or discharge is sought to be enforced. No waiver
of any provision of this Agreement shall be valid unless in writing and signed
by the person or party to be charged.
The headings of this Agreement are for purpose of reference
only and shall not limit or otherwise affect the meaning thereof.
Whenever the singular is used in this Agreement and when
required by the context, the same shall include the plural.
This Agreement may be executed in one or more
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counterparts each of which shall be deemed an original.
8. Notices:
Any notices that may, at any time, be required to be given
hereunder shall mean written notice and be addressed by Registered or Certified
Mail as follows, unless a different address be furnished by Registered or
Certified Mail to the other party:
If to the Company: at 0 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
If to Xxxxxxxxxx: at 0000 Xxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by its President, attested by its Secretary and its corporate seal affixed
hereunto, and Xxxxxxxxxx has affixed his hand and seal as of the date first
above written.
X.X. Xxxx, Inc.
By:
-------------------------------
Xxxxx X. Xxxxxxx, President
(SEAL)
ATTEST:
------------------------------
Xxxxxxxxx Xxxxxxxx, Secretary
-----------------------------
Xxxx Xxxxxxxxxx
00
XXXXX XX XXX XXXX )
)ss.:
COUNTY OF )
On this day of , 2005, before me, the
individual, personally appeared Xxxxx X. Xxxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument acknowledged to me that he executed
the same in his capacity, and that by his signature on the instrument, the
individual, or the person on behalf of which the individual acted, executed the
instrument
-----------------------------
Notary Public
STATE OF NEW YORK )
)ss.:
COUNTY OF )
On this day of , 2005, before me, the
individual, personally appeared Xxxx Xxxxxxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument acknowledged to me that he executed
the same in his capacity, and that by his signature on the instrument, the
individual, or the person on behalf of which the individual acted, executed the
instrument
-----------------------------
Notary Public
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