EXHIBIT 10.7.8
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), is made and entered into
as of the 1st day of July, 1996, by and between SUMMIT MANAGEMENT COMPANY, a
Maryland corporation, and XXXX XXXXX ("Employee").
STATEMENT OF PURPOSE
The "Company" (as hereinafter defined) is principally engaged in the
business of real estate acquisition, development, construction, management,
leasing and brokerage. The Company desires to employ Employee and Employee
desires to be employed in the business of the Company in the manner hereinafter
specified in order to obtain for the Company the benefit of Employee's
experience and expertise and also to make provision for payment of reasonable
and proper compensation to Employee for such services. For purposes of this
Agreement, the term "Company" means and refers to (i) Summit Management Company,
(ii) Summit Properties Inc., (iii) any business entity that is, directly or
indirectly, controlled by or under common control with Summit Properties Inc. or
(iv) any of their respective successors.
As previously agreed between the parties, this Agreement is being
executed as a condition precedent to the commencement of the employment of
Employee with the Company, and Employee has agreed to accept initial employment
subject to and in accordance with all the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and the aforesaid Statement of Purpose, the Company and Employee
hereby agree as follows:
1. Employment and Employee's Duties. The Company employs Employee to
assist the Company in expanding, developing, operating and managing its business
operations, primarily in the field of acquisition, development, management,
leasing and construction of real estate, and specifically, the acquisition,
development, management, leasing and construction of multi-family housing
developments and other commercial real estate projects. In such capacity,
Employee shall perform the duties and have responsibilities as may be assigned
to Employee from time to time by the Company. In the performance of Employee's
duties hereunder, Employee shall at all times be under the supervision, control
and direction of the Company, and Employee shall perform Employee's duties
hereunder in accordance with, and at all times strictly adhere to, all such
reasonable rules, regulations, guidelines and instructions as may be adopted
from time to time by the Company.
2. Sole Employment. Employee agrees to devote Employee's full time
during the customary business hours of the Company and give Employee's best
efforts to the business of the Company and, during the period of Employee's
employment by the Company, Employee shall not engage in any manner, whether as
an officer, employee, owner, partner, stockholder, director, consultant or
otherwise -- directly or indirectly -- in any business other than as provided
for herein without the prior written approval of the President of the Company,
and shall not accept any other employment whatsoever from any other person,
firm, corporation or entity;
provided, however, that Employee may acquire an interest in a business entity so
long as such interest is a passive investment of Employee not exceeding ten
percent (10%) of the total ownership interest in such entity.
3. Term. The employment relationship under the Agreement shall commence
as of the above written date (the "Effective Date") and shall continue until the
date ten (10) business days after written notice is given to the other party by
either the Company or Employee that the employment relationship shall terminate.
Such termination notice may be given by either party without cause and for any
or no reason.
4. Compensation.
(a) Base Salary. Commencing on the Effective Date (as defined in
paragraph 3), the Company shall pay employee during the term of Employee's
employment under this Agreement, a base salary equal to $120,000 per annum (the
"Base Salary"), which amount shall be subject to adjustment, if any, in
accordance with this paragraph 4(a). The Company shall review Employee's Base
Salary on an annual basis, and the Company upon such review and in its sole
discretion, may increase or decrease Employee's Base Salary by an amount which
the Company deems appropriate in light of the Company's and Employee's
performance during the period covered by such review. Any decrease in salary
"without cause" shall be considered a constructive termination whereby granting
Employee the option to elect for separation and payment of severance pay in
accordance with Paragraph 4.e below. The Base Salary, less all applicable
withholding taxes, shall be paid to Employee in accordance with the payroll
procedures in effect with respect to officers of the Company.
(b) Incentive Compensation. In addition to the Base Salary payable to
Employee pursuant to paragraph 4(a) and any special compensatory arrangements
which the Company provides for Employee, effective as of the Effective Date,
Employee shall be entitled to participate in any incentive compensation plans in
effect with respect to employees of the Company whose positions in the Company
are commensurate to Employee's, with the criteria for Employee's participation
in such plans to be established by the Company in its sole discretion.
(c) Stock Options. Employee shall be entitled to participate in
employee stock option plans from time to time established for the benefit of
employees of the Company in accordance with the terms and conditions of such
plans.
(d) Participation in Employee Benefit Plans. Employee shall be entitled
to participate in such medical, dental, disability, hospitalization, life
insurance, profit sharing and other benefit plans as the Company shall maintain
from time to time for the benefit of executive officers of the Company, on the
terms and subject to the conditions set forth in such plans.
(e) Compensation upon Termination of Employment. If Employee's
employment under this agreement is terminated as a result of "no cause"
termination during the first year of employment. Employee shall be entitled to
receive (i) any base salary which may be owed but is unpaid as of the date on
which Employee's employment is terminated and (ii) Employee's base salary as in
effect on the date of such termination for the period up to end of the
2
first anniversary date when the Employee was initially employed. Thereafter, if
Employee's employment under this' Agreement is terminated for any reason
whatsoever, Employee shall not thereafter be entitled to receive any Base Salary
for periods following such termination; provided, however, that Employee shall
be entitled to receive any Base Salary which may be owed to Employee but is
unpaid as of the date on which Employee's employment is terminated. The
benefits, if any, payable to or on behalf of Employee upon Employee's
termination of employment from the Company under any employee benefit plans and
incentive compensation and other compensatory arrangements shall be governed by
the terms and conditions for benefit payments set forth in such plans and
arrangements. See attached Addenda for more information.
5. Employee's Obligations upon Termination of Employment.
(a) Definitions. For purposes of this paragraph 5, the following terms
shall have the following meanings:
"Affiliate" means (i) any entity directly or indirectly
controlling (including without limitation an entity for which
Employee serves as an officer, director, employee, consultant
or other agent), controlled by, or under common control with
Employee, and (ii) each other entity in which Employee,
directly or indirectly, owns any controlling interest or of
which Employee serves as a general partner.
"Company Project" means any Multifamily Property that the
Company owns, operates or manages as of the date of Employee's
termination of employment with the Company or that the Company
has in any manner taken steps to acquire, develop, construct,
operate, manage or lease (including without limitation making
market surveys of a site, talking to the owner or his agent
concerning the purchase or joint venture of a site, optioning
or contracting to buy a site or discussions with the owner or
his agent regarding managing or leasing a property) during the
twelve (12) month period immediately preceding Employee's
termination of employment with the Company.
"Multifamily Property" means any real property on which
multifamily residential-use development has been constructed
or is now or hereafter proposed to be constructed (for
example, and not by way of limitation, a property of the type
managed by the Company).
(b) Anti-Pirating of Employees. For a two (2) year period immediately
following the termination of Employee's employment with the Company, Employee
agrees not to hire, directly or indirectly, or entice or participate in any
efforts to entice to leave the Company's employ, any person who was or is an
employee of the Company at any time during the twelve (12)month period
immediately preceding the termination date of Employee's employment with the
Company.
3
(c) Anti-Pirating of Company Projects. For a period of one (1) year
immediately following the termination of Employee's employment with the Company,
Employee agrees not to engage in any manner, whether as an officer, employee,
owner, partner, stockholder, director, consultant or otherwise - directly or
indirectly - in any business which engages or attempts to engage, directly or
indirectly, in the acquisition, development, construction, operation, management
or leasing bf any Company Project.
(d) Trade Secrets and Confidential Information. Employee hereby agrees
that Employee will hold in a fiduciary capacity for the benefit of the Company,
and shall not directly or indirectly use or disclose any Trade Secret, as
defined hereinafter, that Employee may have acquired during the term of
Employee's employment by the Company for so long as such information remains a
Trade Secret. The term "Trade Secret" as used in this Agreement shall mean
information 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:
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 is the subject of reasonable
efforts by the Company to maintain its secrecy.
In addition to the foregoing and not in limitation thereof, Employee
agrees that during the period of Employee's employment by the Company and for a
period of one (1) year thereafter, Employee will hold in a fiduciary capacity
for the benefit of the Company and shall not directly or indirectly use or
disclose, any Confidential or Proprietary Information, as defined hereinafter,
that Employee may have acquired (whether or not developed or compiled by
Employee and whether or not Employee was authorized to have access to such
Information) during the term of, in ` the course of or as a result of Employee's
employment by the Company. The term "Confidential or Proprietary Information" as
used in this Agreement means any secret, confidential or proprietary information
of the Company not otherwise included in the definition of "Trade Secret" above.
The term "Confidential and Proprietary Information" does not include information
that has become generally available to the public by the act of one who has the
right to disclose such information without violating any right of the Company.
(e) Return of Information. Upon termination of Employee's employment
relationship with the Company, Employee agrees to turn over and return to the
Company all property in Employee's possession which belongs to the Company and
all files, information and data received, held or developed by Employee while
employed by the Company.
(f) Reasonable and Necessary Restrictions. Employee acknowledges that
the restrictions, prohibitions and other provisions of this paragraph 5,
including without limitation the various periods of restrictions set forth in
paragraphs 5(b), 5(c) and 5(d), are reasonable, fair and equitable in scope,
terms and duration, are necessary to protect the legitimate business interests
of the Company, and are a material inducement to the Company to enter into this
4
Agreement. Employee covenants that Employee will not challenge the
enforceability of this Agreement nor will Employee raise any equitable defense
to its enforcement.
(g) Specific Performance. Employee acknowledges that the obligations
undertaken by Employee pursuant to this paragraph 5 are unique and that the
Company likely will have no adequate remedy at law if Employee shall fail to
perform any of Employee's obligations hereunder, and Employee therefore confirms
that the Company's right to specific performance of the terms of this paragraph
5 is essential to protect the rights and interests of the Company. Accordingly,
in addition to any other remedies that the Company may have at law or in equity,
the Company shall have the right to have ail obligations, covenants, agreements
and other provisions of this paragraph 5 specifically performed by Employee, and
the Company shall have the right to obtain preliminary and permanent injunctive
relief to secure specific performance and to prevent a breach or contemplated
breach of this paragraph 5 by Employee, and Employee submits to the jurisdiction
of the courts of the State of North Carolina for this purpose.
(h) Operations of Affiliates. Employee agrees that Employee will
refrain from (i) authorizing any Affiliates to perform or (ii) assisting in any
manner any Affiliate in performing any activities that would be prohibited by
the terms of this paragraph 5 if they were performed by Employee.
(i) Survival. The provisions of this paragraph 5 shall survive the
termination of this Agreement regardless of the date, cause or manner of such
termination.
6. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to be given when delivered
personally or mailed first class, registered or certified mail, postage prepaid,
in either case, addressed as follows:
If to Employee:
Xxxx Xxxxx
0000 Xxx Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
If to the Company, addressed to:
Summit Management Company
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
7. Non-waiver. No Waiver by a parry hereto of any breach by another
party to this Agreement of any provision hereof, shall be deemed to be a waiver
of any later or other breach thereof or as a waiver of any such other provisions
of this Agreement.
8. Severability. Should any provision of this Agreement be declared
invalid or unenforceable as a matter of law, such invalidity or unenforceability
shall not affect or impair the validity or enforceability of any other provision
of this Agreement or the remainder of this Agreement as a whole.
5
9. Entire Agreement. This Agreement constitutes the entire Agreement
and sets forth all the terms of the understanding between the parties hereto
with respect to the subject matter hereof, and any amendment, change or
modification in any provision of this Agreement or any waiver of this Agreement
shall be in writing signed by the parties hereto.
10. Section Headings. The section headings inserted in this Agreement
are for convenience of reference only and shall not be deemed to have any legal
effect whatsoever on the interpretation of this Agreement.
11. Applicable Law. This Agreement shall be governed, enforced and
construed according to the laws of the State of North Carolina.
12. Assignment. The benefits hereunder with respect to the rights of
the Company may be assigned by the Company to any other corporation acquiring
all or substantially all of the assets of the Company or to any other
corporation into which the Company may be liquidated or with which the Company
may be merged or consolidated. The rights of the Company under this Agreement,
as well as the obligations and the liabilities of the Company hereunder, shall
inure to and be binding upon any successors-in-interest or transferees of the
business or assets of the Company, and Employee agrees on demand to execute any
and all documents in connection therewith. Employee may not assign this
Agreement or any rights or benefits hereunder, whether for collateral purposes
or otherwise.
13. Freedom of the Company to Act. No provision of this Agreement shall
be deemed to restrict the absolute right of the Company, at any time, to sell or
dispose of all or any part of its assets, or reconstitute the same into any one
or more subsidiary corporations, or to merge, consolidate, sell or to otherwise
dispose of said subsidiary corporation or any of the assets thereof.
14. Execution. This Agreement is executed in duplicate originals, one
of which is being retained by each of the parties hereto, and each of which
shall be deemed an original hereof.
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SUMMIT MANAGEMENT COMPANY
By: /s/ Xxxx X. Xxxx
-----------------
Xxxx X. Xxxx (SEAL)
President
EMPLOYEE
By: /s/ Xxxx Xxxxx
-----------------
Xxxx Xxxxx (SEAL)
Exhibits Attached:
Letter Dated June 17, 1996
Letter Dated June 18, 1996
7
