Exhibit 10.33
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN
EDUCATION REALTY TRUST, INC.
AND
XXXXXX X. XXXXXX
DECEMBER 6, 2004
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") by and between Education
Realty Trust, Inc. (the "Company"), and Xxxxxx X. Xxxxxx ("You" or "Your")
(collectively, the "Parties"), is effective as of the date of the consummation
of the Company's initial public offering pursuant to an effective registration
statement on Form S-11 (the "Effective Date"). Unless otherwise indicated, all
capitalized terms used in this Agreement are defined in the "Definitions"
section attached as Exhibit A. Exhibit A is incorporated by reference and is
included in the definition of "Agreement."
WHEREAS, the Company desires to employ You as Senior Vice-President --
Operations, and You desire to accept said employment by the Company;
WHEREAS, Your position is a position of trust and responsibility with
access to Confidential Information, Trade Secrets, and information concerning
employees and customers of the Company;
WHEREAS, the Trade Secrets and Confidential Information, and the
relationship between the Company and each of its employees and customers are
valuable assets of the Company and may not be used for any purpose other than
the Company's Business;
WHEREAS, You acknowledge that if You were to perform services for a
competitor during the Restrictive Period, it would be inevitable that You would
disclose the Company's Trade Secrets and Confidential Information;
WHEREAS, the Company has agreed to employ You in exchange for Your
compliance with the terms of this Agreement;
WHEREAS, the Company and You desire to express the terms and
conditions of Your employment in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Employment and Duties
A. Position. The Company shall employ You as Senior
Vice-President -- Operations.
B. Duties. You agree to perform all duties that are
consistent with Your position and that may otherwise be assigned to
You by the Company from time to time.
C. Reporting. You shall report directly to the Board of
Directors (the "Board") of the Company or any other executive
designated by the Board from time to time.
D. Devotion of Time. You agree to (i) devote all
necessary working time required of Your position, (ii) devote Your
best efforts, skill, and energies to promote and advance the business
and/or interests of the Company, and (iii) fully perform Your
obligations under this Agreement. During Your employment, You shall
not render services to any other entity, regardless of whether You
receive compensation, without the prior written consent of the
Company. You may, however, (i) engage in community, charitable, and
educational activities, (ii) manage Your personal investments, (iii)
continue working with Xxxxx & X'Xxxx, Inc.,
provided, however, that such work does not compete with the Company
and does not involve student housing whatsoever, and (iv) with the
prior written consent of the Company, serve on corporate boards or
committees, provided that such activities do not conflict or interfere
with the performance of Your obligations under this Agreement or
conflict with the interests of the Company.
E. Company Policies. You agree to comply with the
policies and procedures of the Company as may be adopted and changed
from time to time, including those described in the Company's employee
handbook. If this Agreement conflicts with such policies or
procedures, this Agreement will control.
F. Fiduciary Duties. As an officer of the Company, You
owe a duty of care and loyalty to the Company, as well as a duty to
perform Your Duties in a manner that is in the best interests of the
Company. You owe such duties to the Company in addition to duties
imposed upon You under applicable law.
2. Term. The term of this Agreement shall be for a period of
3 years, beginning on the Effective Date and ending on the first anniversary of
the Effective Date (the "Employment Period"). Upon expiration of the Employment
Period, this Agreement will automatically renew for a one-year period (each a
"Renewal Period"), unless either Party notifies the other Party, in writing, at
least sixty (60) days prior to the end of the Employment Period or the Renewal
Period that the Agreement will not be renewed. If this Agreement is renewed in
accordance with this Section, each Renewal Period shall be included in the
definition of "Employment Period" for purposes of this Agreement. If this
Agreement is not renewed in accordance with this Section, Your employment will
either (a) terminate, or (b) convert to an at-will relationship, meaning that
You may terminate your employment with the Company at any time and for any
reason whatsoever simply by notifying the Company, and the Company may
terminate your employment at any time with or without cause or advance notice.
If this Agreement is not renewed and Your employment converts to an at-will
relationship, then (a) the period in which You continue to be employed with the
Company shall not be included in the definition of "Employment Period" for
purposes of this Agreement, and (b) this Agreement will no longer be in effect;
provided, however, that the restrictive covenants and all post-termination
obligations contained in this Agreement shall survive termination of this
Agreement.
3. Compensation.
A. Base Salary. During the Employment Period, the
Company will pay You an annual base salary ("Base Salary") of
$150,000.00, minus applicable withholdings, in accordance with the
Company's normal payroll practices. Your Base Salary will be increased
annually at the discretion of the Compensation Committee of the Board
(the "Committee") based upon Your performance and the Company's
performance; provided, however, that the annual increase in Your Base
Salary shall not be less than the percentage increase in the
applicable Consumer Price Index published by the U.S. Bureau of Labor
Statistics.
B. Bonus. During the Employment Period, You will
receive an annual bonus of up to 50% of Your Base Salary only if, as
determined by the Committee in its sole discretion, You meet certain
criteria established from year to year by the Committee (the "Bonus").
You will not receive any Bonus if You do not meet such criteria. In
addition, You will not receive any Bonus if, for any reason, You are
not employed on the date on which the Bonus is to be paid. The Bonus
will be subject to all applicable withholdings and will be paid as
soon as reasonably practical after the end of the calendar year.
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C. Restricted Stock. As soon as possible after
execution of this Agreement, the Company will request that the
Committee grant You 10,000 restricted shares of the Company's common
stock (the "Restricted Stock") pursuant to the terms and conditions of
the Restricted Stock Grant Certificate (the "Restricted Stock
Certificate") to be prepared by the Company in accordance with the
Stock Incentive Plan. The Restricted Stock shall vest pursuant to the
terms of the Restricted Stock Certificate.
D. Profits Interest Units. As soon as possible after
execution of this Agreement, the Company will request that the
Committee cause Education Realty Limited Partner, LLC, a Delaware
limited liability company controlled by the Company (the "Profits
Interest LLC"), to grant to You Units in Profits Interest LLC that
will result in Your receiving with respect to such Units in Profits
Interest LLC current distributions that are equivalent to those
distributions that would be received by a holder of 20,000 Common
Partnership Units in Education Realty Operating Partnership, LP, a
Delaware limited partnership (the "UPREIT"), pursuant to the terms and
conditions of the operating agreement of the Profits Interest LLC, as
such agreement may be amended, restated and supplemented from time to
time (the "Profits Interest LLC Agreement"). A condition to Your
receipt of such interest in the Profits Interest LLC shall be the
execution by You of the Profits Interest LLC Agreement.
E. Benefits Plans. During the Employment Period, You
are eligible to participate in all benefit plans in effect for
executives and employees of the Company, subject to the terms and
conditions of such plans.
F. Vacation. During the Employment Period, You are
entitled to 4 weeks of paid vacation per calendar year. All vacation
must be pre-approved by the Board.
G. Executive Benefits. During the Employment Period,
You will be entitled to receive all other fringe benefits available to
executives of the Company.
H. Business Expenses. During the Employment Period, the
Company will reimburse You for all approved business expenses incurred
by You in the performance of Your duties under this Agreement in
accordance with the policies and procedures of the Company.
4. Termination. This Agreement may be terminated by any of the
following events:
A. Expiration of the Employment Period unless
renewed/extended as set forth above.
B. Mutual written agreement between You and the Company
at any time.
C. Your death.
D. Your disability which renders You unable to perform
the essential functions of Your job even with reasonable
accommodation, as determined in the Company's sole discretion.
E. For Cause, which shall mean a termination by the
Company, upon the action of the Board, because of any one of the
following events:
(i) Your insubordination;
(ii) Your breach of this Agreement;
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(iii) Any act or omission by You which injures,
or is likely to injure, the Company or the
business reputation of the Company;
(iv) Your dishonesty, fraud, malfeasance,
negligence or misconduct;
(v) Your failure to (a) satisfactorily perform
Your duties under this Agreement, (b)
follow the direction of any individual to
whom You report, (c) abide by the policies,
procedures, and rules of the Company, or
(d) abide by laws applicable to You in Your
capacity as an employee, executive, or
officer of the Company;
(vi) Your arrest, indictment for, conviction of,
or entry of a plea of guilty or no contest
to, a felony or crime involving moral
turpitude;
(vii) Your resignation unless such resignation is
based upon Good Reason; or
(viii) Your refusal to perform duties unless such
refusal is based upon Good Reason.
F. Your resignation for Good Reason.
G. Without Cause, which shall mean any termination of
employment by the Company which is not defined in sub-sections A-F
above.
5. Company's Post-Termination Obligations
A. If this Agreement terminates for the reasons set
forth in Sections 4.A, B, C, D, or E above, then the Company will pay
You all accrued but unpaid wages, based on Your then current Base
Salary, through the termination date. The Company shall have no other
obligations to You, including under any provision of this Agreement,
Company policy, or otherwise; however, You shall continue to be bound
by Section 7 and all other post-termination obligations to which You
are subject, including, but not limited to, the obligations contained
in this Agreement.
B. If this Agreement terminates for any of the reasons
set forth in Sections 4.F or G above, then the Company will pay You
(i) all accrued but unpaid wages through the termination date, based
on Your then current Base Salary; (ii) a separation payment equal to
12 months of Your then current Base Salary, to be paid over a period
of 12 months in accordance with the Company's regular payroll
practices; (iii) a payment for all accrued but unpaid vacation through
Your termination date, based on Your then current Base Salary; (iv) a
payment for all approved, but unreimbursed, business expenses,
provided that a request for reimbursement of business expenses is
submitted in accordance with the Company's policies and submitted
within five (5) business days of Your termination date; (v) a payment
for all earned and accrued but unpaid bonuses; and (vi) payment of any
COBRA continuation coverage premiums required for the coverage of You
and Your eligible dependents under the Company's major medical group
health plan for a period of up to 12 months (or, if less, the period
that You and Your eligible dependents are entitled to such COBRA
continuation coverage).(1) Except as set forth in this Section 5.B,
the Company shall have no other obligations to You. The Company's
obligation to provide the
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(1) You and Your eligible dependents shall be solely responsible
for any requirements which must be satisfied or actions that must be taken in
order to obtain such COBRA continuation coverage other than the payment of
COBRA premiums.
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payments set forth in this Section 5.B above shall be conditioned upon
the following (the "Separation Conditions"):
(i) Your execution and non-revocation of a
Separation & Release Agreement in a form
prepared by the Company by which You
release the Company from any and all
liability and claims of any kind; and
(ii) Your compliance with the restrictive
covenants (Section 7) and all
post-termination obligations, including,
but not limited, the obligations contained
in this Agreement.
C. If You do not execute an effective Separation &
Release Agreement as set forth above, the Company will not provide any
payments or benefits to You under Section 5.B. The Company's
obligation to make the separation payments set forth in Section 5.B
shall terminate immediately upon any breach by You of any
post-termination obligations to which You are subject.
6. Change of Control. Notwithstanding the provisions of Section
5, if, within one (1) year following a Change of Control, the Company
terminates Your employment without Cause, as defined in Section 4.G, then the
Company will pay You (i) all accrued but unpaid wages through the termination
date, based on Your then current Base Salary; (ii) a separation payment equal
to 12 months of Your then current Base Salary, to be paid within thirty (30)
days of Your termination date; (iii) a payment for all earned and accrued but
unpaid bonuses; and (iv) payment of any COBRA continuation coverage premiums
required for the coverage of You and Your eligible dependents under the
Company's major medical group health plan for a period of up to 12 months (or,
if less, the period that You and Your eligible dependents are entitled to such
COBRA continuation coverage).(2) The payments and benefits set forth in this
Section 6 shall be provided to You in lieu of any benefits to which You may be
entitled to receive under Section 5.B above; provided, however, that Your right
to receive the separation payments and benefits set forth in this Section 6
shall be subject to the Separation Conditions set forth in Section 5.B above.
The separation payments and benefits set forth in this Section 6 shall
constitute full satisfaction of the Company's obligations under this Agreement,
any Company policy, or otherwise.
7. Your Post-Termination Obligations.
A. Return of Materials. Upon the termination of Your
employment for any reason, You will return to the Company all of the
Company's property, including, but not limited to, keys, passcards,
credit cards, customer lists, rolodexes, tapes, software, computer
files, marketing and sales materials, and any other property, record,
document or piece of equipment belonging to the Company.
B. Set-Off. If You have any outstanding obligations to
the Company upon the termination of Your employment for any reason,
You hereby authorize the Company to deduct any amounts owed to the
Company from Your final paycheck and/or any amounts that would
otherwise be due to You, including under Sections 5 or 6 above.
C. Non-Disparagement. During Your employment and upon
the termination of Your employment with the Company for any reason,
You will not make any disparaging or defamatory statements, whether
written or verbal, regarding the Company.
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(2) Id.
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D. Restrictive Covenants. You acknowledge that the
restrictions contained in this Section 7 are reasonable and necessary
to protect the legitimate business interests of the Company, and will
not impair or infringe upon Your right to work or earn a living after
Your employment with the Company ends.
(i) Trade Secrets and Confidential Information.
You represent and warrant that: (a) You are
not subject to any legal or contractual
duty or agreement that would prevent or
prohibit You from performing the duties
contemplated by this Agreement or otherwise
complying with this Agreement, and (b) You
are not in breach of any legal or
contractual duty or agreement, including
any agreement concerning trade secrets or
confidential information owned by any other
party.
You agree that You will not: (a) use,
disclose, or reverse engineer the Trade
Secrets or the Confidential Information for
any purpose other than the Company's
Business, except as authorized in writing
by the Company; (b) during Your employment
with the Company, use, disclose, or reverse
engineer (1) any confidential information
or trade secrets of any former employer or
third party, or (2) any works of authorship
developed in whole or in part by You during
any former employment or for any other
party, unless authorized in writing by the
former employer or third party; or (c) upon
Your resignation or termination (1) retain
Trade Secrets or Confidential Information,
including any copies existing in any form
(including electronic form), which are in
Your possession or control, or (2) destroy,
delete, or alter the Trade Secrets or
Confidential Information without the
Company's written consent.
The obligations under this Section 7 shall
remain in effect as long as the information
constitutes a trade secret or Confidential
Information under applicable law. The
confidentiality, property, and proprietary
rights protections available in this
Agreement are in addition to, and not
exclusive of, any and all other rights to
which the Company is entitled under federal
and state law, including, but not limited
to, rights provided under copyright laws,
trade secret and confidential information
laws, and laws concerning fiduciary duties.
(ii) Non-Competition. During the Restricted
Period, You agree that You shall not
perform the Duties, individually or on
behalf of any person, firm, partnership,
association, business organization,
corporation or entity engaged in the
Business within the Territory. The Parties
agree and acknowledge that: (a) the periods
of restriction and Territory of restriction
contained in this Agreement are fair and
reasonable in that they are reasonably
required for the protection of the Company
and that the Territory is the area in which
You perform services for Company; and (b)
by having access to information concerning
employees and actual or prospective
Customers of Company, You shall obtain a
competitive advantage as to the Company.
(iii) Non-Solicitation of Customers. During the
Restricted Period, You will not, directly
or indirectly, solicit any Customer of the
Company for the purpose of providing any
goods or services competitive with the
Business within the Territory. The
restrictions set forth in this Section 7
apply only to the Customers with whom You
had Contact.
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(iv) Non-Recruit of Employees. During the
Restricted Period, You will not, directly
or indirectly, solicit, recruit or induce
any Employee to (a) terminate his or her
employment relationship with the Company or
(b) work for any other person or entity
engaged in the Business.
E. Post-Employment Disclosure. During the Restricted
Period, You shall provide a copy of this Agreement to persons and/or
entities for whom You work or consult as an owner, partner, joint
venturer, employee or independent contractor. If, during the
Restricted Period, You work or consult for another person or entity as
an owner, partner, joint venturer, employee or independent contractor,
You shall provide the Company with such person or entity's name, the
nature of such person or entity's business, Your job title, and a
general description of the services You will provide.
F. Resignation. Upon the termination of Your employment
with the Company for any reason and upon the request of the Company,
You shall deliver to the Company a written resignation from all
offices, membership on the Board, and fiduciary positions in which You
serve for the Company and each of its subsidiaries and affiliates.
8. Work Product. Your employment duties may include inventing in
areas directly or indirectly related to the Business of the Company or to a
line of business that the Company may reasonably be interested in pursuing. All
Work Product shall constitute work made for hire. If (a) any of the Work
Product may not be considered work made for hire, or (b) ownership of all
right, title, and interest to the legal rights in and to the Work Product will
not vest exclusively in the Company, then, without further consideration, You
assign all presently-existing Work Product to the Company, and agree to assign,
and automatically assign, all future Work Product to the Company.
The Company will have the right to obtain, and hold in its own name,
copyrights, patents, design registrations, proprietary database rights,
trademarks, rights of publicity, and any other protection available in the Work
Product. At the Company's request, You agree to perform, during or after Your
employment with the Company, any acts to transfer, perfect and defend the
Company's ownership of the Work Product, including, but not limited to: (a)
executing all documents (including a formal assignment to the Company)
necessary for filing an application or registration for protection of the Work
Product (an "Application"), (b) explaining the nature of the Work Product to
persons designated by the Company, (c) reviewing Applications and other related
papers, or (d) providing any other assistance reasonably required for the
orderly prosecution of Applications.
You agree to provide the Company with a written description of any
Work Product in which You are involved (solely or jointly with others) and the
circumstances attendant to the creation sufficient of such Work Product.
9. License. During Your employment and after Your employment
with the Company ends, You grant to the Company an irrevocable, nonexclusive,
worldwide, royalty-free license to: (i) make, use, sell, copy, perform,
display, distribute, or otherwise utilize copies of the Licensed Materials,
(ii) prepare, use and distribute derivative works based upon the Licensed
Materials, and (ii) authorize others to do the same. You shall notify the
Company in writing of any Licensed Materials You deliver to the Company.
10. Release. During Your employment and after Your employment
with the Company ends, You consent to the Company's use of Your image,
likeness, voice, or other characteristics in the Company's products or
services. You release the Company from any causes of action that You have or
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may have arising out of the use, distribution, adaptation, reproduction,
broadcast, or exhibition of such characteristics.
11. Injunctive Relief. You agree that if You breach Section 7 of
this Agreement: (a) the Company would suffer irreparable harm; (b) it would be
difficult to determine damages, and money damages alone would be an inadequate
remedy for the injuries suffered by the Company, and (c) if the Company seeks
injunctive relief to enforce this Agreement, You will waive and will not (i)
assert any defense that the Company has an adequate remedy at law with respect
to the breach, (ii) require that the Company submit proof of the economic value
of any Trade Secret or Confidential Information, or (iii) require the Company
to post a bond or any other security. Nothing contained in this Agreement shall
limit the Company's right to any other remedies at law or in equity.
12. Payment of Defense Costs. If You are individually named as a
defendant in a lawsuit relating to or arising out of the performance of Your
duties for the Company pursuant to this Agreement, then the Company agrees to
pay the reasonable attorneys' fees and expenses You incur in defending such
lawsuit (the "Defense Costs"). The Company will not pay any damages or any
other sums or relief for which You are held liable. Payment of the Defense
Costs shall be the Company's only obligation under this Section. If You are
held liable, then You agree to reimburse the Company for all Defense Costs the
Company paid to You or on Your behalf. The Company's obligation under this
Section shall not apply to any claim or lawsuit brought by the Company against
You.
13. Severability. The provisions of this Agreement are severable.
If any provision of this Agreement is determined to be unenforceable, in whole
or in part, then such provision shall be modified so as to be enforceable to
the maximum extent permitted by law. If such provision cannot be modified to be
enforceable, the provision shall be severed from this Agreement to the extent
unenforceable. The remaining provisions and any partially enforceable
provisions shall remain in full force and effect.
14. Attorneys' Fees. In the event of litigation relating to this
Agreement, the prevailing party shall be entitled to recover attorneys' fees
and costs of litigation in addition to all other remedies available at law or
in equity.
15. Waiver. Either Party's failure to enforce any provision of
this Agreement shall not act as a waiver of that or any other provision. Either
Party's waiver of any breach of this Agreement shall not act as a waiver of any
other breach.
16. Entire Agreement. This Agreement, including Exhibit A that is
incorporated by reference, constitutes the entire agreement between the Parties
concerning the subject matter of this Agreement. This Agreement supersedes any
prior communications, agreements or understandings, whether oral or written,
between the Parties relating to the subject matter of this Agreement. Other
than terms of this Agreement, no other representation, promise or agreement has
been made with You to cause You to sign this Agreement.
17. Amendments. This Agreement may not be amended or modified
except in writing signed by both Parties.
18. Successors and Assigns. This Agreement shall be assignable
to, and shall inure to the benefit of, the Company's successors and assigns,
including, without limitation, successors through merger, name change,
consolidation, or sale of a majority of the Company's stock or assets, and
shall be binding upon You. You shall not have the right to assign Your rights
or obligations under this Agreement. The covenants contained in Section 7 of
this Agreement shall survive cessation of Your employment with the Company,
regardless of who causes the cessation or the reason for cessation.
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19. Governing Law. The laws of the State of Tennessee shall
govern this Agreement. If Tennessee's conflict of law rules would apply another
state's laws, the Parties agree that Tennessee law shall still govern.
20. No Strict Construction. If there is a dispute about the
language of this Agreement, the fact that one Party drafted the Agreement shall
not be used in its interpretation.
21. Notice. Whenever any notice is required, it shall be given in
writing addressed as follows:
To Company: Attention: Chief Financial Officer
Education Realty Trust, Inc.
000 Xxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
To Executive: Xxxxxx Xxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Notice shall be deemed given and effective three (3) days after the
deposit in the U.S. mail of a writing addressed as above and sent first class
mail, certified, return receipt requested, or when actually received. Either
Party may change the address to which notices shall be delivered or mailed by
notifying the other party of such change in accordance with this Section.
22. Consent to Jurisdiction and Venue. You agree that any claim
arising out of or relating to this Agreement shall be brought in a state or
federal court of competent jurisdiction in Tennessee. You consent to the
personal jurisdiction of the state and/or federal courts located in Tennessee.
You waive (i) any objection to jurisdiction or venue, or (ii) any defense
claiming lack of jurisdiction or improper venue, in any action brought in such
courts.
23. AFFIRMATION. YOU acknowledge that YOU HAVE carefully read
this Agreement, YOU know and understand its terms and conditions, and YOU HAVE
had the opportunity to ask the Company any questions YOU may have had prior to
signing this Agreement.
24. Compliance with Code ss.409A. Notwithstanding any provision
of this Agreement to the contrary, it is the intent of the parties hereto that
this Agreement shall not create or provide for any "nonqualified deferred
compensation plan" (as defined in Code ss.409A(d)(1)) unless such "nonqualified
deferred compensation plan" shall meet the requirements of Code ss.409A(a)(2),
(3) and (4), and this Agreement and any plans, agreements or arrangements
between the parties shall be interpreted accordingly. If any "nonqualified
deferred compensation plan" created or provided for pursuant to this Agreement
shall fail to meet the requirements of Code ss.409A(a)(2), (3) or (4) due to a
term or provision of such "nonqualified deferred compensation plan" prior to
taking into account the provisions of this paragraph 24, such "nonqualified
deferred compensation plan" and its corresponding terms or provisions causing
such failure shall be deemed to be modified and shall be interpreted (1) so as
not to allow any distributions or payments to be made until one of the events
listed in Code ss.409A(a)(2)(A) have occurred, (2) so as not to allow any
acceleration of the time or schedule of any payment or distribution in
accordance with Code ss.409A(a)(3), and (3) so that any elections regarding
deferrals, or the timing or form of distributions or payments, shall comply
with the provisions of Code ss.409A(a)(4). For example, should this Agreement
provide for a payment from a "nonqualified deferred compensation plan" earlier
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than the occurrence of an event listed in Code ss.409A(a)(2)(A), such payment
shall not occur until the occurrence of an event listed in Code
ss.409A(a)(2)(A) notwithstanding any terms or provisions of any document
effectuating such "nonqualified deferred compensation plan" to the contrary,
and this Agreement shall be deemed to be modified accordingly.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
effective as of the Effective Date.
EDUCATION REALTY TRUST, INC.
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
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Title: President and Chief Executive Officer
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Date: 12/6/04
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XXXXXX X. XXXXXX
/s/ XXXXXX X. XXXXXX
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Date: 12/6/04
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EXHIBIT A
DEFINITIONS
A. "Business" shall mean the business of owning and managing off-campus
student housing communities, providing third-party management services
for student housing communities, and providing third-party development
consulting services for student housing communities.
B. "Change of Control" means (i) the sale, transfer, or other disposition
of eighty percent (80%) or more of the aggregate value of the
Company's assets, as reasonably determined by the Board, or (ii) a
sale of fifty percent (50%) or more of the then outstanding voting
stock of the Company in a single transaction or a series of related
transactions.
C. "Confidential Information" means (i) information of the Company, to
the extent not considered a Trade Secret under applicable law, that
(a) relates to the business of the Company, (b) possesses an element
of value to the Company, (c) is not generally known to the Company's
competitors, and (d) would damage the Company if disclosed, and (ii)
information of any third party provided to the Company which the
Company is obligated to treat as confidential. Confidential
Information includes, but is not limited to, (i) future business
plans, (ii) the composition, description, schematic or design of
products, future products or equipment of the Company, (iii)
communication systems, audio systems, system designs and related
documentation, (iv) advertising or marketing plans, (v) information
regarding independent contractors, employees, clients and customers of
the Company, and (vi) information concerning the Company's financial
structure and methods and procedures of operation. Confidential
Information shall not include any information that (i) is or becomes
generally available to the public other than as a result of an
unauthorized disclosure, (ii) has been independently developed and
disclosed by others without violating this Agreement or the legal
rights of any party, or (iii) otherwise enters the public domain
through lawful means.
D. "Contact" means any interaction between You and a Customer which (i)
takes place in an effort to establish, maintain, and/or further a
business relationship on behalf of the Company, and (ii) occurs during
the last year of Your employment with the Company (or during Your
employment if employed less than a year).
E. "Customer" means any person or entity to whom the Company has sold its
products or services, or solicited to sell its products or services.
F. "Duties" means managing the day-to-day functions of the property
management division of the Company, which includes supervising the
marketing and operation of field properties, and supervising the
employees of related properties and the Company's home office.
G. "Employee" means any person who (i) is employed by the Company at the
time Your employment with the Company ends, (ii) was employed by the
Company during the last year of Your employment with the Company (or
during Your employment if employed less than a year), or (iii) is
employed by the Company during the Restricted Period.
H. "Good Reason" shall exist if (i) the Company, without Your written
consent, materially reduces Your then current title, duties or
responsibilities, provided, however, that the occurrence of a Change
of Control and the corresponding change in Your duties and
responsibilities one (1) or more year(s) after the Change of Control
shall not, by itself, be sufficient to qualify as Good Reason under
this clause, (ii) You provide written notice to the Company of such
action and
provide the Company with thirty (30) days to remedy such action (the
"Cure Period"), (iii) the Company fails to remedy such action within
the Cure Period, and (iv) You resign within ten (10) days of the
expiration of the Cure Period. Good Reason shall not include any
isolated, insubstantial or inadvertent action that (i) is not taken in
bad faith, and (ii) is remedied by the Company within the Cure Period.
I. "Licensed Materials" means any materials that You utilize for the
benefit of the Company, or deliver to the Company or the Company's
customers, which (i) do not constitute Work Product, (ii) are created
by You or of which You are otherwise in lawful possession, and (iii)
You may lawfully utilize for the benefit of, or distribute to, the
Company or the Company's customers.
J. "Restricted Period" means the time period during Your employment with
the Company, and for one year after Your employment with the Company
ends.
K. "Territory" means the states of Alabama, Arizona, California,
Colorado, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky,
Maryland, Michigan, Mississippi, Missouri, North Carolina, Ohio,
Oklahoma, Pennsylvania, South Carolina, Tennessee and Texas.
L. "Trade Secrets" means information of the Company, and its licensors,
suppliers, clients and customers, without regard to form, including,
but not limited to, technical or nontechnical data, a formula, a
pattern, a compilation, a program, a device, a method, a technique, a
drawing, a process, financial data, financial plans, product plans, or
a list of actual or potential customers or suppliers which is not
commonly known by or available to the public and which information (i)
derives economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or
use, and (ii) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
M. "Work Product" means (i) any data, databases, materials,
documentation, computer programs, inventions (whether or not
patentable), designs, and/or works of authorship, including but not
limited to, discoveries, ideas, concepts, properties, formulas,
compositions, methods, programs, procedures, systems, techniques,
products, improvements, innovations, writings, pictures, audio, video,
images of You, and artistic works, and (ii) any subject matter
protected under patent, copyright, proprietary database, trademark,
trade secret, rights of publicity, confidential information, or other
property rights, including all worldwide rights therein, that is or
was conceived, created or developed in whole or in part by You while
employed by the Company and that either (i) is created within the
scope of Your employment, (ii) is based on, results from, or is
suggested by any work performed within the scope of Your employment
and is directly or indirectly related to the Business of the Company
or a line of business that the Company may reasonably be interested in
pursuing, (iii) has been or will be paid for by the Company, or (iv)
was created or improved in whole or in part by using the Company's
time, resources, data, facilities, or equipment.
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