EMPLOYMENT AGREEMENT 2006 AS RESTATED AND AMENDED
Exhibit
10.11
EMPLOYMENT
AGREEMENT 2006
AS
RESTATED AND AMENDED
THIS
EMPLOYMENT AGREEMENT
(“Agreement”) is and entered into effective as of the 1st
day of
September 2006, by and between TRUSTREET
PROPERTIES, INC.,
a
Maryland corporation (“TSY”), and Xxxxxx
X. Xxxxxxxxxxx
(“Executive”).
Preliminary
Statement
WHEREAS,
Executive is currently employed by TSY as its Executive Vice President, Chief
Financial Officer, and Chief Operating Officer; and
WHEREAS,
TSY
desires to continue to employ Executive, and Executive desires to continue
to be
employed by TSY; and
WHEREAS,
TSY and
Executive desire to enter into this Agreement which sets forth the terms and
conditions of Executive’s continued employment by TSY.
NOW,
THEREFORE,
in
consideration of the mutual covenants set forth below, TSY and Executive agree
as follows:
1. Employment.
TSY
hereby employs the Executive, and Executive agrees to serve TSY, for the period
and upon terms and conditions set forth below. Except as otherwise provided
in
this Agreement, Executive’s employment shall be subject to the employment
policies and practices of TSY in effect from time to time during the term of
Executive’s employment.
2. Term
of Agreement.
The
term of Executive’s employment pursuant to this Agreement shall commence on
September 1, 2006 (the “Effective Date”), and shall continue in effect for a
period of thirty-six (36) months to and including September 1, 2009, unless
terminated earlier in accordance with Section 5 below. Thereafter, this
Agreement will be automatically renewed by TSY for additional one-year terms,
unless written notice is given by TSY to Executive no later than one hundred
and
eighty (180) days prior to the termination date of any such term, unless
terminated sooner in accordance with Section 5 below.
3. Position
and Duties.
Executive shall serve as the [Executive Vice President, Chief Financial Officer,
and Chief Operating Officer, of TSY and shall have such duties, authority and
responsibilities as are normally associated with and appropriate for such
position, and shall perform such other services for TSY consistent with such
position as may be reasonably assigned to him by the Chief Executive Officer
or
President of TSY. Executive shall devote substantially all of his working time
and efforts to the business and affairs of TSY, except that Executive may engage
in personal or charitable activities which do not interfere with Executive’s
employment duties. Executive shall comply with the policies, standards, and
regulations established from time to time by TSY.
4. Compensation
and Related Matters.
4.1. Base
Salary.
During
the term of this Agreement, TSY shall pay to Executive a base salary at an
annual rate as specified in Attachment “A” to this Agreement (“Base Salary”).
The Base Salary shall be paid in equal installments in accordance with TSY’s
usual and customary payroll practices, but not less frequently than monthly.
The
Base Salary may be adjusted as deemed appropriate in the sole and absolute
discretion of TSY’s Board of Directors.
4.2. Bonus
and Long-Term Compensation.
In
addition to his Base Salary, Executive may be entitled to an annual bonus (the
“Annual Bonus”) as set forth in Attachment “A” to this Agreement. Pending TSY’s
approval, Executive may also be entitled to participate in any long-term
compensation program implemented by TSY.
4.3. Benefit
Plans and Arrangements.
Executive shall be entitled, to the extent Executive is eligible, to participate
in and to receive benefits under all existing and future employee benefit plans,
perquisites and fringe benefit programs of TSY that are provided generally
to
other similarly situated Executives of TSY, on terms similar to those provided
to such other Executives.
4.4. Expenses.
TSY
shall reimburse Executive for all reasonable and customary expenses incurred
by
Executive in performing services for TSY, including all reasonable and customary
expenses of travel while away from home on business or at the request of and
in
the service of TSY, provided that such expenses are incurred and accounted
for
by Executive in accordance with the policies and procedures established from
time to time by TSY.
4.5. Paid
Time Off.
Executive shall be entitled to no fewer than twenty-five (25) days of paid
time
off (PTO) per year.
5. Termination.
The
term of Executive’s employment pursuant to this Agreement may be terminated
under the following circumstances:
5.1. Death.
The
term of Executive’s employment shall terminate upon his death.
5.2. Disability.
TSY may
terminate the term of Executive’s employment as a result of Executive’s
Disability. For purposes of this Agreement, “Disability” is defined as the
inability, by reason of illness or other physical or mental incapacity or
limitation, of Executive substantially to perform the duties of his employment
with the Company, as determined in good faith by TSY, which inability continues
for at least one hundred twenty (120) consecutive days, or for shorter periods
aggregating one hundred twenty (120) days during any consecutive twelve (12)
month period.
5.3. By
TSY for Cause.
TSY may
terminate the term of Executive’s employment for “Cause” upon written notice to
Executive. For purposes of this Agreement, TSY shall have “Cause” to terminate
Executive’s employment upon any of the following events:
| (a) |
Executive’s
continued failure to perform, or his habitual neglect of, his duties
and
obligations hereunder;
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| (b) |
Executive’s
conviction of, or plea of guilty or nolo contendere to, an indictment
or
information, or an indictment or information is filed against Executive
and is not discharged or otherwise resolved within twelve (12) months
thereafter, and said indictment or information charged Executive
with a
felony, any crime involving moral turpitude, or any crime which is
likely
to result in material injury to
TSY;
|
| (c) |
Executive’s
breach of a fiduciary duty relating to the Executive’s employment with
TSY, including but not limited to an act of fraud, theft or dishonesty;
or
|
| (d) |
Executive’s
material breach of this Agreement;
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Notwithstanding
the foregoing, Executive shall not be deemed to have been terminated for Cause
under subsections (a) or (d) unless TSY provided written notice to the Executive
setting forth in reasonable detail the reasons for TSY’s intention to terminate
for Cause, and Executive failed within thirty (30) days to cure the event or
deficiency set forth in the written notice.
5.4. By
TSY Without Cause.
TSY may
terminate the term of Executive’s employment other than for Cause, death or
Disability at any time upon thirty (30) days prior written notice to
Executive.
5.5. By
Executive for Good Reason.
Executive may terminate the term of his employment for “Good Reason” upon
written notice to TSY. For purposes of this Agreement, “Good Reason” shall
include the following events unless otherwise consented to by
Executive:
| (a) |
The
assignment to Executive of any duties materially inconsistent with
Executive’s position, duties, responsibilities and status within
TSY;
|
| (b) |
A
material and substantial reduction in Executive’s reporting
responsibilities not pertaining to job performance
issues;
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| (c) |
A
reduction in the Base Salary of the Executive not pertaining to job
performance issues;
|
| (d) |
A
requirement by TSY that Executive’s work location be moved more than fifty
(50) miles from TSY’s principal place of business in Orlando,
Florida;
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| (e) |
TSY’s
material breach of this Agreement;
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| (f) |
TSY’s
failure to obtain an agreement from any successor to the business
of TSY
by which the successor assumes and agrees to perform this Agreement;
or
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| (g) |
A
“Change in Control” (as defined below) of TSY occurs and
within twelve (12) months thereafter one of the events set forth
in
subsection (a)-(f) above occurs.
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Notwithstanding
the foregoing, Executive shall not be deemed to have terminated his employment
for Good Reason under subsections (a), (b), (c), (d), or (e) unless Executive
provided written notice to TSY setting forth in reasonable detail the reasons
for Executive’s intention to terminate his employment for Good Reason, and TSY
failed within thirty (30) days to cure the event or deficiency set forth in
the
written notice.
For
purposes of this Agreement, a “Change in Control” means any one of the following
has occurred: (i) a merger, consolidation, or reorganization of TSY with one
or
more other corporations, partnerships, limited liability companies, joint
ventures or other organizations or entities (individually, an “Entity” and
collectively, the “Entities”), whether or not TSY is the surviving Entity, if
immediately after such transaction (A) the stockholders of TSY immediately
prior
to such transaction do not own, directly or indirectly, more than fifty (50%)
of
the voting securities of the surviving Entity, and (B) a majority of the Board
of Directors of TSY immediately prior to such transaction are not a majority
of
the Board of Directors of the surviving Entity immediately after such
transaction; (ii) a sale of all or substantially all of the assets of TSY (on
a
consolidated basis) to one or more individuals or Entities who are not an
Affiliate (as defined in Section 8.1 below); (iii) the acquisition by any
individual or Entity (or group of related or affiliated individuals and/or
Entities) of direct or indirect beneficial ownership of fifty percent (50%)
or
more of TSY’s voting securities; (iv) a majority of the Board of Directors of
TSY elected at any annual or special meeting are not individuals nominated
by
the then incumbent Board of Directors (or its Nominating Committee); or (v)
the
dissolution or liquidation of TSY.
5.6. By
Executive Without Good Reason.
Executive may terminate the term of Executive’s employment other than for Good
Reason at any time upon thirty (30) days prior written notice to
TSY
6. Compensation
in the Event of Termination.
Upon the
termination of this Agreement (the “Termination Date”), TSY shall pay Executive
compensation as set forth below:
6.1. By
TSY Without Cause; By Executive for Good Reason.
In the
event that Executive’s employment is terminated by TSY without Cause, or by the
Executive for Good Reason, TSY shall pay the Executive a cash payment equal
to
two (2) times the sum of (a) the Executive’s Base Salary, which is in effect on
the Termination Date, and (b) the Executive’s average Annual Bonus paid for the
two (2) calendar years immediately preceding the Termination Date (the
“Severance Payment”). The Severance Payment shall be made payable in equal
installments over a twenty-four (24) month period in accordance with TSY’s usual
and customary payroll practices, commencing on the first payday following the
Termination Date; provided,
however,
that if
Executive is a "key employee" (within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended), payment shall not commence until
six
(6) months following Executive's “separation from service” (within the meaning
of Section 409A) to the extent necessary to avoid the imposition of the
additional tax under Section 409A (in which such case the first payment shall
include all installment payments of the Severance Payment that otherwise would
have been made during such six (6) month period). In addition, TSY shall pay,
or
reimburse Executive for, the cost of the premiums Executive incurs for the
continuation of his health benefits under the Consolidated Omnibus Budget
Reconciliation Act of 1986 (COBRA) for up to eighteen (18) months following
the
Termination Date; provided,
however,
that
TSY shall in no event be required to pay, or reimburse Executive for, the cost
of such premiums after such time as Executive becomes entitled to receive health
benefit from another employer or recipient of Executive’s services (determined
without regard to any individual waivers or other arrangements). Within thirty
(30) days of the Termination Date, TSY shall also pay Executive a lump sum
equal
to the sum of: (a) any accrued but unpaid Base Salary and PTO due Executive
as
of the Termination Date; (b) any Annual Bonus earned for the prior year but
not
paid to Executive as of the Termination Date; and (c) reimbursements for
appropriately submitted expenses which have been incurred, but have not been
paid by TSY, as of the Termination Date.
6.2. By
TSY for Cause; By Executive Without Good Reason.
In the
event that TSY terminates Executive’s employment for Cause, or Executive
terminates his employment without Good Reason, all compensation or benefits
to
which Executive may otherwise be entitled to shall cease on the Termination
Date, except for (a) any accrued but unpaid Base Salary due Executive as of
the
Termination Date, and (b) reimbursements for appropriately submitted expenses
which have been incurred, but have not been paid by TSY, as of the Termination
Date.
6.3. Death
or Disability.
In the
event that TSY terminates Executive’s employment due to his death or Disability,
TSY shall pay the Executive or his estate a lump sum equal to one (1) times
Executive’s Base Salary, payable within thirty (30) days of Executive’s
termination. This payment shall be in addition to, rather than in lieu of,
the
entitlement of Executive or his estate to any other insurance or benefit
proceeds under any insurance policy paid for by TSY and payable as a result
of
his death or Disability. All other compensation or benefits to which Executive
maybe entitled to shall cease on the Termination Date except for (a) any accrued
but unpaid Base Salary and PTO due Executive as of the Termination Date, and
(b)
reimbursements for appropriately submitted expenses which have been incurred,
but have not been paid by TSY, as of the Termination Date.
6.4. Natural
Termination.
In the
event that Executive’s employment by TSY pursuant to this Agreement naturally
terminates at the end of any term due to non-renewal by TSY (a “Natural
Termination”), all compensation or benefits to which Executive may otherwise be
entitled to shall cease on the Termination Date, except for (a) any accrued
but
unpaid Base Salary due Executive as of the Termination Date, and (b)
reimbursements for appropriately submitted expenses which have been incurred,
but have not been paid by TSY, as of the Termination Date; provided,
however,
that at
the election of TSY in its sole and absolute discretion and upon written notice
to the Executive on or prior to the Termination Date, TSY shall pay the
Executive a cash payment equal to one (1) times the Executive’s Base Salary
which is in effect on the Termination Date, which cash payment shall be made
payable over a twelve (12) month period in equal installments in accordance
with
TSY’s usual and customary payroll practices, commencing on the first payday
following the Termination Date (the “Optional Severance Payment”); provided,
further,
that if
Executive is a "key employee" (within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended), payment shall not commence until
six
(6) months following Executive's “separation from service” (within the meaning
of Section 409A) to the extent necessary to avoid the imposition of the
additional tax under Section 409A (in which such case the first payment shall
include all installment payments of the Severance Payment that otherwise would
have been made during such six (6) month period).
7. Acceleration
of Xxxxxxx.Xx
the
event of a Change in Control (as defined in Section 5.5 above), any unvested
rights Executive has as a result of his employment by TSY to any: (a) common
or
preferred stock, (b) partnership or member interest, (c) other equity interest,
(d) stock or equity option, (e) phantom stock compensation, or (f) any other
stock plan, stock option plan, or other deferred compensation plan that is
subject to vesting or restriction (other than a right of first refusal), shall
become immediately vested, but the originally selected distribution option
under
the deferred compensation plan shall govern; and to the extent an option is
exercisable, it shall remain exercisable for the lesser of ninety (90) days
or
the balance of the term of the option. Notwithstanding the foregoing, all
distributions under a deferred compensation plan shall be in accordance with
the
existing plan.
8. Non-Competition;
Non-Solicitation; and Confidentiality.
8.1. Confidential
Information.
Executive acknowledges that TSY has provided, and during the term of this
Agreement it will provide, Executive with confidential and proprietary
information regarding the business in which TSY and the current or future
Affiliates (as defined below) of TSY (collectively the “TSY Affiliates”) are
involved, and that TSY has provided, and will provide, Executive with “trade
secrets”, as defined in Section 688.002(4) of the Florida Statutes, of TSY and
the TSY Affiliates (hereinafter all such confidential and proprietary
information and trade secretes are referred to as the “Confidential
Information”). For purposes of this Agreement, “Confidential Information”
includes, but is not limited to:
| (a) |
Information
related to the business of TSY and the TSY Affiliates, including
but not
limited to marketing strategies and plans, sales procedures, operating
policies and procedures, pricing and pricing strategies, business
and
strategic plans, financial statements and projections, accounting
and tax
positions and procedures, and other business and financial information
of
TSY and the TSY Affiliates;
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| (b) |
Information
regarding the customers of TSY and the TSY Affiliates which Executive
acquired as a result of his employment with TSY, including but not
limited
to, customer contracts, work performed for customers, customer contacts,
customer requirements and needs, data used by TSY and the TSY Affiliates
to formulate customer bids, customer financial information and other
information regarding the customer’s
business;
|
| (c) |
Information
regarding the vendors of TSY and the TSY Affiliates which Executive
acquired as a result of his employment with TSY, including but not
limited
to, product and service information and other information regarding
the
business activities of such
vendors;
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| (d) |
Training
materials developed by and utilized by TSY and the TSY
Affiliates;
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| (e) |
Any
other information which Executive acquired as a result of his employment
with TSY and which Executive has a reasonable basis to believe TSY
or the
TSY Affiliates, as the case may be, would not want disclosed to a
business
competitor or to the general public; and
|
| (f) |
Information
which:
|
| (i) |
is
proprietary to, about or created by TSY or the TSY
Affiliates;
|
| (ii) |
gives
TSY or any of the TSY Affiliates some competitive advantage, the
opportunity of obtaining such advantage or the disclosure of which
could
be detrimental to the interests of TSY or the TSY
Affiliates;
|
| (iii) |
is
not typically disclosed to non-executives by TSY or otherwise is
treated
as confidential by TSY or the TSY Affiliates;
or
|
| (iv) |
is
designated as Confidential Information by TSY or from all the relevant
circumstances should reasonably be assumed by Executive to be confidential
to TSY or any TSY Affiliates.
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For
purposes of this Agreement, the term “Affiliate” has the meaning set forth in
Rule 12b-2 of the regulations promulgated under the Securities Exchange Act
of
1934, as amended.
8.2. Covenant
Not to Compete.
While
employed by TSY or any TSY Affiliate and for a period of twenty-four (24) months
following the termination of this Agreement or the termination of Executive’s
“at will” employment by TSY or any TSY Affiliate, whichever is last to occur, in
consideration of the obligations of TSY hereunder, including without limitation
the disclosure of Confidential Information to Executive, Executive shall not,
directly or indirectly, for compensation or otherwise: (a) engage in any
activity that, or (b) have any interest in any sole proprietorship, partnership,
corporation, company, association, business or any other person or entity
(whether as an employee, officer, director, shareholder, member, partner,
corporation creditor, consultant or otherwise) that, directly or indirectly,
competes with any of the business enterprises in which TSY and the TSY
Affiliates (collectively, the “TSY Group”) are now or during Executive’s
employment become engaged in including, but not limited to, all aspects of
commercial real estate development, leasing and financing (collectively, “TSY’s
Business”) in any and all states in which the TSY Group conducts such business
while Executive is employed by TSY or any TSY Affiliate; provided,
however,
Executive may continue to hold securities of TSY or any TSY Affiliate or
acquire, solely as an investment, shares of capital stock or other equity
securities of any company which are traded on any national securities exchange
or are regularly quoted in the over the counter market, so long as Executive
does not control, acquire a controlling interest in, or become a member of
a
group which exercises direct or indirect control of more than five percent
(5%)
of any class of capital stock of such corporation. Notwithstanding the
foregoing, in the event that Executive’s employment by TSY terminates due to a
Natural Termination (as defined in Section 6.4 above) and TSY elects not to
pay
Executive the Optional Severance Payment pursuant to Section 6.4 above, then
the
prohibitions contained in this Section 8.2 shall terminate on the Termination
Date.
8.3. Nonsolicitation
of Clients.
While
employed by TSY or any TSY Affiliate and for a period of twenty-four (24) months
following the termination of this Agreement or the termination of Executive’s
“at will” employment by TSY or any TSY Affiliate, whichever is last to occur, in
consideration of the obligations of TSY hereunder, including without limitation
the disclosure of Confidential Information to Executive, Executive shall not,
directly or indirectly, for himself or as principal, agent, independent
contractor, consultant, director, shareholder, partner, officer, member, or
employee of any other person, firm, corporation, partnership, company,
association, business or other entity, solicit, attempt to contract with, sell
to, or enter into a contractual or business relationship of any kind pertaining
to any aspect of TSY’s Business (as defined in Section 8.2), or any other
business conducted by the TSY Group, with any person or entity with which the
TSY Group had any contractual or business relationship or engaged in
negotiations toward a contract or business relationship in the previous twenty
four (24) months.
8.4. Nonsolicitation
of Employees.
While
employed by TSY or any TSY Affiliate and for a period of twenty-four (24) months
following the termination of this Agreement or the termination of Executive’s
“at will” employment by TSY or any TSY Affiliate, whichever is last to occur, in
consideration of the obligations of TSY hereunder, including without limitation
the disclosure of Confidential Information to Executive, Executive shall not
directly or indirectly, for himself or as principal, agent, independent
contractor, consultant, director, officer, shareholder, partner, member, or
employee of any other person, firm, corporation, partnership, company,
association or other entity, either (a) hire, attempt to employ, contact,
solicit with respect to hiring or enter into any contractual arrangement with
any employee or former employee of the TSY Group (as defined in Section 8.2),
or
(b) induce or otherwise advise or encourage any employee of the TSY Group to
leave his or her employment unless, in each such case, such employee or former
employee has not been employed by the TSY Group for a period in excess of six
(6) months prior to such hire, attempt to employ, employment contract,
solicitation, or inducement.
8.5. Nondisparagement.
While
employed by TSY or any TSY Affiliate and after Executive’s employment
terminates, in consideration of the obligations of TSY hereunder, including
without limitation the disclosure of Confidential Information to Executive,
Executive shall not disparage, denigrate or comment negatively upon, either
orally or in writing, TSY, any TSY Affiliate, or any of their officers or
directors (collectively, the “Benefited Persons”), to or in the presence of any
person or entity unless compelled to act by a valid subpoena or other legal
mandate; provided, however, if Executive receives such a subpoena or other
legal
mandate he shall provide TSY with written notice of same at least ten (10)
business days prior to the date on which Executive is required to make the
disclosure. Unless Executive is terminated for Cause, TSY shall not disparage,
denigrate or comment negatively upon, either orally or in writing, Executive
to
any prospective employer or third party after Executive’s employment terminates
unless compelled to do so by subpoena or other legal mandate; provided however,
if TSY receives such a subpoena or other legal mandate it shall provide
Executive with written notice of same at least ten (10) business days prior
to
the date on which TSY is required to make the disclosure.
8.6. Confidentiality.
While
employed by TSY or any TSY Affiliate and after Executive’s employment
terminates, in consideration of the obligations of TSY hereunder, including
without limitation the disclosure of Confidential Information to Executive,
Executive shall keep secret and retain in strictest confidence, and shall not
disclose to any third-party or use for his benefit or the benefit of others,
except in connection with the business affairs of TSY or any other Benefited
Persons, any Confidential Information, including, without limitation,
information concerning the financial condition, prospects, methods of doing
business, marketing and promotion of services of TSY or any TSY Affiliate,
disclosed to or known by the Executive as a consequence of his employment by
TSY
or any TSY Affiliate, which information is not generally known or otherwise
lawfully obtainable in the public domain, unless compelled to do so by a valid
subpoena or other legal mandate. In the event Executive receives such a subpoena
or other legal mandate, he shall provide TSY with written notice of same at
least ten (10) business days prior to the date Executive is required to make
such disclosure.
9. Tangible
Items.
All
files, records, documents, manuals, books, forms, reports, memoranda, studies,
data, calculations, recordings, or correspondence, in whatever form they may
exist, and all copies, abstracts and summaries of the foregoing, and all
physical items related to the business of TSY or any TSY Affiliate, whether
of a
public nature or not, and whether prepared by Executive or not, are and shall
remain the exclusive property of TSY or such TSY Affiliate, as the case may
be,
and shall not be removed from their premises, except as required in the course
of Executive’s employment by TSY, without the prior written consent of TSY. Such
items, including any copies or other reproductions thereof, shall be promptly
returned by Executive upon the termination of Executive’s employment with TSY or
any TSY Affiliate, or at any earlier time upon the written request of
TSY.
10. Remedies.TSY
and
Executive acknowledge and agree that a breach by Executive of any of the
covenants contained in Sections 8 or 9 of this Agreement will cause immediate
and irreparable harm and damage to TSY and/or any other Benefited Person, and
that monetary damages will be inadequate to compensate TSY, and/or any other
Benefited Person, as the case may be, for such breach. Accordingly, Executive
acknowledges that TSY and/or any other Benefited Person affected shall, in
addition to any other remedies available to them at law or in equity (including
the recovery of damages), be entitled to an injunction from any court of
competent jurisdiction enjoining and restraining any violation of said covenants
by Executive or any of his affiliates, associates, partners, employees or
agents, either directly or indirectly, without the necessity of posting bond
or
proving the inadequacy of legal remedies or irreparable harm. In the event
of
Executive’s breach of any of the provisions of Sections 8 or 9 of this
Agreement, in addition to any other remedies TSY may have, TSY may cease making
the balance of the payments specified in Section 6.1 or 6.4, if any, and recover
in full from Executive any such payments previously made. The rights and
obligations of Sections 8 and 9 hereof are covenants independent of any other
rights or obligations of this Agreement and no claim, or defense based on a
claim, that TSY is in breach of this Agreement shall be a defense to the
enforcement of TSY ’s rights under Sections 8 or 10 hereof.
11. Arbitration.
Except
with regard to a breach by Executive of any of his covenants in Sections 8
or 9
of this Agreement, all disputes between the parties or any claims concerning
the
performance, breach, construction or interpretation of this Agreement, or in
any
manner arising out of this Agreement, shall be submitted to binding arbitration
in accordance with the Commercial Arbitration Rules, as amended from time to
time, of the American Arbitration Association (the “AAA”), which arbitration
shall be carried out in the manner set forth below:
| (a) |
Within
fifteen (15) days after written notice by one party to the other
party of
its demand for arbitration, which demand shall set forth the name
and
address of its designated arbitrator, the other party shall appoint
its
designated arbitrator and so notify the demanding party. Within fifteen
(15) days thereafter, the two arbitrators so appointed shall appoint
the
third arbitrator. If the two appointed arbitrators cannot agree on
the
third arbitrator, then the AAA shall appoint an independent arbitrator
as
the third arbitrator. The dispute shall be heard by the arbitrators
within
ninety (90) days after appointment of the third
arbitrator.
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| (b) |
The
arbitration proceedings shall take place in Orlando, Florida. The
decision
of any two or all three of the arbitrators shall be binding upon
the
parties without any right of appeal, and the decision of the arbitrators
shall be final and binding upon TSY, its successors and assigns,
and upon
Executive, his heirs, personal representatives, and legal representatives.
Judgment upon any award rendered by the arbitrators may be entered
into by
any court having competent jurisdiction without any right of
appeal.
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| (c) |
Each
party shall pay its or his own expenses of arbitration, and the expenses
of the arbitrators and the arbitration proceeding shall be shared
equally.
However, if in the opinion of a majority of the arbitrators any claim
or
defense was unreasonable, the arbitrators may assess, as part of
their
award, all or any part of the arbitration expenses of the other party
(including reasonable attorneys’ fees) and of the arbitrators and the
arbitration proceeding.
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12. Attorneys’
Fees.
In the
event any legal or equitable action is instituted by TSY or any Benefited Person
due to Executive’s breach of any of the covenants contained in Sections 8 or 9
of this Agreement, the prevailing party in such action shall be entitled to
recover reasonable attorneys’ fees and other costs and expenses from the
non-prevailing party, whether incurred at the trial level or in any appellate
proceeding.
13. Severability.
As the
provisions of this Agreement are independent of and severable from each other,
TSY and Executive agree that if, in any action before any court or agency
legally empowered to enforce this Agreement, any term, restriction, covenant,
or
promise hereof is found to be unreasonable or otherwise unenforceable, then
such
invalid term, restriction, covenant, or promise shall be deemed modified to
the
extent necessary to make it enforceable, and the remaining provisions of this
Agreement shall remain in full force and effect if the essential provisions
of
this Agreement for each party remain valid, binding and
enforceable.
14. Notice.
For
purposes of this Agreement, notices, demands and all other communications
provided for in the Agreement shall be in writing and shall be deemed to have
been duly given when received if delivered in person, the next business day
if
delivered by overnight commercial courier (e.g. FedEx), or the third (3rd)
business day if mailed by United States certified mail, return receipt
requested, postage prepaid, to the following addresses:
If
to
Executive:
Xxxxxx
X.
Xxxxxxxxxxx
0000
Xxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
If
to
TSY:
Trustreet
Properties, Inc.
000
Xxxxx
Xxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxx,
Xxxxxxx 00000
Attn:
Chief
Executive Officer
Either
party may change its address for notices in accordance with this Section 14
by
providing written notice of such change to the other party.
15. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida without regard to principals of Conflicts of Law.
16. Benefits;
Binding Effect; Assignment.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective heirs, personal representatives, legal representatives,
successors and permitted assigns. Executive shall not assign this Agreement.
However, TSY may assign this Agreement to a TSY Affiliate upon written notice
to
Executive, provided that the assignee assumes all of the obligations of TSY
under this Agreement.
17. Withholding.
All
payments of compensation due to Executive under this Agreement including, but
not limited to, Base Salary, Annual Bonus, Severance Payment, and Optional
Severance Payment, if any, shall be subject to applicable federal and state
income tax withholding and payroll taxes (e.g. FICA, FUTA, and Medicare
tax).
18. Entire
Agreement.
This
Agreement, including its incorporated Attachment ”A”, constitutes the entire
agreement between the parties, and all prior understandings, agreements or
undertakings between the parties concerning Executive’s employment or the other
subject matters of this Agreement [including but not limited to that certain
Employment Agreement between Executive and CNL Franchise Network GP, Corp.
dated
as of September 1, 2002], are superseded in their entirety by this Agreement.
This Agreement may not be modified or amended other than by an agreement in
writing executed and delivered by both parties hereto.
19. Survival.
Except
where the context otherwise provides, all of the terms, conditions, and
prohibitions of this Agreement shall survive the termination of this Agreement,
including but not limited to, Sections 7, 8, and 9.
20. Interpretation.
As both
parties having had the opportunity to consult with legal counsel, no provision
of this Agreement shall be construed against or interpreted to the disadvantage
of any party by reason of such party having, or being deemed to have, drafted,
devised, or imposed such provision.
21. Notice
to TSY; Cure Periods.
TSY
shall not be deemed to be in breach or violation of this Agreement for any
purpose unless Executive provided written notice to TSY setting forth in
reasonable detail the reasons for Executive’s claim that TSY has breached or
violated this Agreement and TSY failed within thirty (30) days of such notice
to
cure the breach or violation alleged therein.
22. Representations
by Executive.
Executive represents and warrants to TSY that he is not a party to or bound
by
any litigation, judgment, consent decree or any other agreement, covenant,
or
instrument that would prohibit Executive from performing his duties or
obligations hereunder or conflict with any of the terms or conditions of this
Agreement.
IN
WITNESS WHEREOF,
the
undersigned have executed this Agreement to be effective as of the date first
above written.
|
“Executive”
|
|
|
/s/
Xxxxxxx Wash-Xxxxxx
Witness
|
/s/
Xxxxxx X. Xxxxxxxxxxx
Xxxxxx
X. Xxxxxxxxxxx
|
|
“TSY”
|
|
|
Trustreet
Properties, Inc.
|
|
|
/s/
Xxxxxxxxx Xxxxx
Witness
|
By: /s/
Xxxxxx X. XxXxxxxxxx
Xxxxxx
X. XxXxxxxxxx
Chief
Executive Officer
|
EMPLOYMENT
AGREEMENT OF XXXXXX X. XXXXXXXXXXX
2006
ATTACHMENT “A”
1. Base
Salary:
Executive’s Base Salary shall be $350,000.00 per year.
2. Annual
Bonus Compensation:
Executive may receive annual bonus compensation targeted at fifty (50%) of
Executive’s Base Salary with a maximum annual bonus of one hundred percent
(100%) of Executive’s Base Salary. Executive’s bonus compensation shall be
based, in part, on his achieving his Key Performance Indicators (KPIs) for
the
year, TSY’s performance for the year, and determined in accordance with TSY
executive compensation policies.
3. Long-Term
Compensation:
Executive is currently participating in a long-term incentive plan, and would
be
eligible to participate in additional plans as applicable.
