EXECUTIVE EMPLOYMENT AGREEMENT
This
Employment Agreement (“Agreement”) is entered into this 21st day of May, 2007,
by and between Xxxxxxx X. Xxxxxxxx (“Executive”) and AmREIT (the
“Company”).
RECITALS
In
consideration of the mutual covenants set forth herein and other good and
valuable consideration, the receipt and sufficiency of which the parties
acknowledge, the Company and Executive, intending to be legally bound, hereby
agree as follows:
1. Employment
Term. The Company agrees to employ Executive and Executive
hereby accepts such employment from the Company upon the terms and conditions
set forth in this Agreement for the period beginning on the date hereof and
continuing until December 31, 2008 (unless otherwise terminated earlier in
accordance with Section 5 hereof) (“Initial Employment
Period”). Upon the expiration of the Initial Employment Period, this
Agreement shall be automatically renewed for consecutive one-year periods unless
either party provides a written notice of non-renewal to the other party at
least ninety (90) days prior to the end of the Initial Employment Period or
any
additional one-year period (the “Renewal Employment Period”) (the Initial
Employment Period and any Renewal Employment Periods shall be referred to
collectively herein as the “Employment Period”). A notice of
non-renewal provided by the Company shall not constitute a termination without
Cause under Section 5(b).
2. Nature
of Duties. Executive shall be employed as the Company’s Managing Vice
President of Leasing with job responsibilities related thereto, and such job
responsibilities may be modified from time to time at the sole discretion of
the
Chief Executive Officer or the Board of Trust Managers of the Company
(“Board”). Executive shall report to the Chief Executive Officer and
shall devote his full time efforts to the faithful performance of his duties
on
behalf of the Company. Executive shall not engage in
additional gainful employment of any kind or undertake any role or position,
other than charitable or civic activities, whether or not for compensation,
with
any person or entity during the Employment Period without advance written
approval of the Chief Executive Officer or the Board. Executive shall
perform his duties at or within a reasonable vicinity of Houston, Texas, except
for required travel on the Company’s business.
3. Adherence
to Company Rules. Executive, at all times during the
Employment Period, shall strictly adhere to and obey all of the Company’s
written rules, regulations and policies, which will be provided to Executive
and
are now in effect, or as are subsequently adopted or modified by the Company
and
provided to Executive, which govern the operation of the Company’s business and
the conduct of employees of the Company.
4. Compensation
and Benefits.
a. Base
Salary. During the Employment Period, Executive shall
receive an annual base salary of $152,000, payable in equal installments in
accordance with the Company’s normal payroll procedures. Executive’s
salary shall be subject to all applicable federal and state withholding
taxes. Executive’s salary may be increased by the CEO and the
Compensation Committee of the Company’s Board of Directors (“Compensation
Committee”) at any time in their discretion.
b. Incentive
Compensation. During the Employment Period,
Executive will be eligible to participate in any
annual performance
incentive or bonus program, as approved by the CEO and the Compensation
Committee in their discretion, based on Company and individual performance
goals. Any incentive or bonus compensation for any year shall be paid
on or before March 15 of the following year, with the exception of
production-based bonuses, which will be paid in July and February, based on
Executive’s achievement of pre-established goals. Executive must be
an employee on the payment date for the bonus or incentive to be considered
"earned or accrued", other than production-based bonuses, which are considered
"earned or accrued" as the production goals are met. Executive shall
not be entitled to earn any incentive compensation or bonuses hereunder after
the termination of this Agreement.
c. Standard
Benefits. During the Employment Period, Executive shall be
entitled to participate in all employee benefit plans and programs, including
paid vacations, generally available to other similarly situated Company
executives, subject to the terms and conditions of the applicable
plans.
d. Expenses. During
the Employment Period, Executive shall be entitled to receive prompt
reimbursement for all reasonable and customary travel and business expenses
he
incurs in connection with his employment hereunder. Executive must
account for those expenses in accordance with the policies and procedures
established by the Company.
e. Restricted
Equity. During the Employment Period, Executive may, within
the sole discretion of the CEO and the Compensation Committee, be eligible
to
participate in such restricted share plans that the Company may establish from
time to time in the future, subject to the terms and conditions of the
applicable plan.
f. Vacation. Executive
shall be entitled to three (3) weeks vacation in each calendar year, together
with leave of absence and leave for illness or temporary disability in
accordance with the policies of the Company in effect from time to time;
provided however that Executive shall not be permitted to carry over more than
40 hours of unused vacation time from year to year.
5. Termination. In
addition to non-renewal as set forth in Section 1 of this Agreement, the
Company or Executive may terminate this Agreement and Executive’s employment as
provided below:
a. Termination
by the Company for Cause. The Company shall have the right
to terminate Executive’s employment and this Agreement at any time for any of
the following reasons (each of which is referred to herein as
“Cause”):
(A) continued
failure by Executive (other than for reason of mental or physical illness),
after notice by the Company, to perform Executive’s duties;
(B) misconduct
in the performance of Executive’s duties;
(C) any
act
by Executive of fraud or dishonesty with respect to any aspect of the Company's
business including, but not limited to, falsification of Company
records;
(D) conviction
of Executive of a felony (or a plea of nolo contendere with respect
thereto);
(E) acceptance
by Executive of employment with another employer; or
(F) Executive’s breach
of Sections 8, 9, 10 or 11 of this Agreement.
If
the
Company terminates Executive’s employment for any of the reasons set forth
above: (A) the Company shall within ten (10) days following the
date of termination, pay the Executive any earned and accrued but unpaid
installments of base salary and any other accrued and unpaid amounts due to
Executive under Section 4 above through the date of termination, and the
Company shall have no further obligations to Executive hereunder from and after
the date of termination; and (B) all of Executive’s outstanding stock
awards or other equity grants shall continue to be governed by the terms and
conditions of the applicable grant agreement and any related plan.
b. Termination
by the Company Without Cause. The Company shall have the
right to terminate Executive’s employment without Cause by giving Executive not
less than thirty (30) days’ prior written notice and in such event, the Company
shall pay Executive (i) any earned and accrued but unpaid compensation and
benefits and any other accrued and unpaid amounts due to Executive under
Section 4 above through the date of termination and, subject to the
provisions of Sections 14 and 26, (ii) a severance payment equal to one (1)
times Executive’s annual base salary (based on Executive’s monthly salary on the
date of termination) and one (1) times the annual bonus, computed on the average
of the last three (3) years bonus received by Executive (if three years of
bonus
history is not available, then the most recent annually paid or targeted bonus
will be used). The Company shall pay the severance payment referenced
in this paragraph in equal monthly installments over a period of twelve (12)
months. In addition, all of Executive’s unvested restricted shares
and equity interests shall continue to be governed by the terms and conditions
of any applicable grant agreement and any related plan. In addition,
upon a termination pursuant to this subsection b., Executive shall be entitled
to continue to participate in Company-provided medical or health insurance
or
benefit plans, at no cost to Executive, for one (1) year after the date of
termination; provided, however, that if applicable law or the terms of the
plan
prohibit the continued participation of Executive or his dependents for all
or
part of such period, the Company shall make a cash payment to Executive that
is
sufficient, on an after-tax basis, to allow Executive to obtain insurance that
provides substantially the same benefits as the Company-provided medical or
health insurance or benefit plan.
c. Voluntary
Termination by Executive. Except as provided in Section
5(f), Section 5(g) and Section 6(b) below, in the event that Executive’s
employment with the Company is voluntarily terminated by Executive for any
reason, the Company shall pay Executive any earned and accrued but unpaid
installments of base salary and any other accrued and unpaid amounts due to
Executive under Section 4 above through the date of termination, and the
Company shall have no further obligations hereunder from and after the date
of
such termination and the Company and Executive shall have all other rights
and
remedies available under this Agreement or any other agreement and at law or
in
equity.
d. Termination
Upon Death. In the event that Executive shall die during the
Employment Period, (i) within thirty (30) days following the date of death,
the
Company shall pay to Executive’s estate (A) any earned and accrued but unpaid
installments of base salary and bonus, any accrued but unpaid vacation benefit
and any other accrued and unpaid amounts due to Executive under Section 4
above through the date of Executive’s death and (ii) all of Executive’s unvested
restricted shares and equity interests shall continue to be governed by the
terms and conditions of any applicable grant agreement and any related
plan. Executive shall be entitled to participate in the Company’s
life insurance program.
e. Termination
Upon Disability. In the event that Executive shall become
Disabled (as defined below) during the Employment Period, the Company may
terminate Executive’s employment hereunder by giving Executive not less than
thirty (30) days’ prior written notice of the effective date of termination and
in such event, the Company shall pay Executive any earned and accrued but unpaid
installments of base salary and any other accrued and unpaid amounts due to
Executive under Section 4 above through the date of
termination. In addition, all of Executive’s unvested restricted
shares and equity interests shall continue to be governed by the terms and
conditions of any applicable grant agreement and any related
plan. For purposes of this Agreement, Executive shall become
“Disabled” if he shall become, because of illness or incapacity, unable to
perform the essential functions of his job under this Agreement, with or without
reasonable accommodation, for a continuous period of ninety (90) days during
the
Employment Period.
f. Termination
by Executive for Good Reason. Executive may terminate his
employment hereunder for Good Reason (as defined below) at any time during
the
Employment Period by delivery of written notice to the Company of such
termination at least thirty (30) days prior to the effective date of termination
and in such event, the Company shall pay Executive (i) any earned and
accrued but unpaid compensation and benefits and any other accrued but unpaid
amounts due to Executive under Section 4 above through the date of
termination and, subject to the provisions of Sections 14 and 26, (ii) a
severance payment equal to one (1) times Executive’s annual base salary (based
on Executive’s monthly salary on the date of termination) and one (1) times the
annual bonus, computed on the average of the last three (3) years bonus received
by Executive (if three years of bonus history is not available, then the most
recent annually paid or targeted bonus will be used). The Company
shall pay the severance payment referenced in this paragraph in equal monthly
installments over a period of twelve (12) months. In addition, all of
Executive’s unvested restricted shares and equity interests shall continue to be
governed by the terms and conditions of any applicable grant agreement and
any
related plan.
For
purposes of this Agreement, “Good Reason” shall mean any one or more of the
following:
(A) a
reduction by the Company, without Executive’s consent, in Executive’s position,
duties, responsibilities or status with the Company that represents a
substantial adverse change from his position, duties, responsibilities or
status, but specifically excluding any action in connection with the termination
of Executive’s employment for death, Disability (as defined herein), Cause (as
defined herein) or by Executive for Normal Retirement (as defined herein);
provided, however, that the Company (i) hiring or promoting of one or more
new
or existing employees to whom Executive may report or (ii) otherwise undertaking
an internal reorganization that results in Executive reporting to a new or
different person shall not be considered “Good Reason” for purposes of this
subsection (A);
(B) the
Company requiring, as a condition of employment, Executive to relocate his
employment more than fifty (50) miles from the location of Executive’s principal
office on the date of this Agreement, without the consent of
Executive;
(C) any
willful and material breach by the Company (or by the acquiring or successor
business entity) of any material provision of this Agreement or any other
agreement between the Company or any of its subsidiaries and Executive that,
in
any case, is not cured within thirty (30) days of the Company’s receipt of
written notice from Executive of such breach; or
(D) the
failure by the Company to obtain the assumption of this Agreement by any
successor or assign of the Company.
g. Termination
Upon Normal Retirement. In the event that Executive’s
employment terminates by reason of his Normal Retirement during the Employment
Period, (i) the Company shall pay to Executive any earned and accrued but unpaid
installments of base salary and bonus, any accrued but unpaid vacation benefit
and any other accrued and unpaid amounts due to Executive under Section 4
above through the date of termination, and (ii) all of Executive’s unvested
restricted shares and equity interests shall vest and be exercisable and all
restrictions on the transfer of any shares or equity interests shall lapse
as of
the date of Executive’s termination, and otherwise shall continue to be
governed by the terms and conditions of any applicable grant agreement and
any
related plan. The Company shall have no further obligations hereunder
from and after the date of such termination. For purposes of this
Agreement, “Normal Retirement” means the Executive’s voluntary termination of
employment with the Company after attaining age 65.
6. Change
of Control.
a. Change
of Control. For purposes of this Agreement, unless the Board
determines otherwise, a “Change of Control” of the Company shall be deemed to
have occurred at such time as:
(A) any
“person” (as the term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of voting securities of the Company representing more than 50%
of
the Company’s outstanding voting securities or rights to acquire such securities
except for any voting securities issued or purchased under any employee benefit
plan of the Company or its subsidiaries; or
(B) a
plan of
reorganization, merger, consolidation, sale of all or substantially all of
the
assets of the Company or similar transaction is approved or occurs or is
effectuated pursuant to which the Company is not the resulting or surviving
entity; provided, however, that such an event listed above will be deemed to
have occurred or to have been effectuated only upon receipt of all required
regulatory approvals not including the lapse of any required waiting periods;
or
(C) a
plan of
liquidation of the Company or an agreement for the sale or liquidation of the
Company is approved and completed; or
(D) the
Board
determines in its sole discretion that a Change in Control has occurred, whether
or not any event described above has occurred or is contemplated.
b. Benefits
Upon Change of Control. If, within a period beginning six
(6) months before, and ending twelve (12) months after, the date of a Change
of
Control (the “Change Period”), Executive’s employment with the Company is
(i) terminated without Cause (as described in Section 5b above) by the
Company (or by the acquiring or successor business entity following a Change
of
Control), or (ii) terminated for Good Reason (as described in Section 5f
above) by Executive: (A) the Company shall pay to Executive any
earned and accrued but unpaid installments of base salary and bonus and any
other accrued but unpaid amounts due to Executive under Section 4 above through
the date of termination; and, subject to the provisions of Sections 14 and
26,
(B) the Company shall pay to Executive as severance pay and in lieu of any
further compensation for periods subsequent to the termination an amount in
cash
equal to one times Executive’s base salary (based on Executive’s monthly salary
on the date of the Change of Control) and one times the annual bonus, computed
on the average of the last three (3) years bonus received by Executive (if
three
years of bonus history is not available, then the most recent annually paid
or
targeted bonus will be used); and (C) Executive shall continue to
participate in Company-provided medical or health insurance or benefit plans,
at
no cost to Executive, for twelve (12) months after the date of termination;
provided however, that if applicable law or the terms of the plan prohibit
the
continued participation of Executive or his dependents for all or part of such
period, the Company shall make a cash payment to Executive that is sufficient,
on an after-tax basis, to allow Executive to obtain insurance that provides
substantially the same benefits as the Company-provided medical or health
insurance or benefit plan. The Company shall pay the severance
payment referenced in this paragraph in equal monthly installments over a period
of twelve (12) months. In addition to the foregoing, on the date of a
Change of Control, all of Executive’s unvested restricted shares, and equity
interests shall vest and be exercisable and all restrictions on the transfer
of
any shares or equity interests shall lapse as of the date of the Change of
Control and any such awards that include an exercise period shall remain
exercisable until the earlier of the expiration date of such award or the first
anniversary of the date of termination.
Notwithstanding
the foregoing, if, in connection with a transaction that technically meets,
or
may meet, the definition of “Change of Control” as set forth in subsection a.
above, Executive’s employment by the Company or a successor to the Company is
terminated, but Executive is immediately re-hired or otherwise becomes an
employee of a successor to the Company or surviving company in such a
transaction, including, by way of example, a “going private” transaction in
which the Company’s equity securities are no longer publicly traded, no benefits
shall be payable to Executive under this subsection b.
7. No
Mitigation or Offset. Executive shall not be required to
mitigate the amount of any payment provided for in Section 5 or
Section 6 of this Agreement by seeking other employment or otherwise. The
Company shall not be entitled to set off or reduce any severance payments owed
to Executive under this Agreement by the amount of earnings or benefits received
by Executive in future employment.
8. Non-Disclosure. During
the Employment Period, the Company agrees to provide Confidential Information
to
Executive and Executive agrees to retain any Confidential Information in strict
confidence, and shall not furnish, make available or disclose to any third
party
or use for the benefit of himself or any third party, except in the furtherance
of his job duties with the Company. Executive shall not, at any time
after his employment with the Company has ended (for whatever reason), use
or
divulge to any person or entity, directly or indirectly, any Confidential
Information, or use any Confidential Information in subsequent employment,
business or work of any nature, regardless of when Executive obtained access
to
or knowledge of such Confidential Information. As used in this
Agreement, “Confidential Information” shall mean any information relating to the
business or affairs of the Company and its affiliates and predecessors,
including information, observations and data obtained by Executive at any time
during his employment with the Company, including before and during the course
of his performance under this Agreement. Confidential Information
includes, without specific limitation, trade secrets, information relating
to
financial statements, operations manuals, systems manuals, property or market
evaluations or analyses, customer identities, customer profiles, customer
preferences, partner or investor identities, employees, suppliers, properties,
prospective properties, project designs, project methods, advertising programs,
acquisition plans and information, expansion plans and information, advertising
techniques, target markets, servicing methods, equipment, programs, strategies
and information, market analyses, profit margins, pricing information, cost
structure, past, current or future marketing strategies, information development
by contractors or consultants, or any other proprietary information used by
the
Company or its affiliates; provided, however, that Confidential Information
shall not include any information which is in the public domain or becomes
known
in the industry through no wrongful act on the part of
Executive. Executive acknowledges that the Confidential Information
is vital, sensitive, confidential and proprietary to the Company and that he
is
under a contractual and common law duty to not disclose the Confidential
Information to any third party at any time, except as otherwise required by
law,
rule or regulation. Executive acknowledges and agrees that his
non-disclosure obligation applies to all Confidential Information of the
Company, no matter when he obtained knowledge of or access to such Confidential
Information. If Executive is subpoenaed, or is otherwise required by
law to testify concerning Confidential Information, Executive agrees to promptly
notify Company upon receipt of a subpoena, or upon belief that such testimony
shall be required.
9. Non-Competition. During
the Employment Period and for an additional period of one (1) year following
the
termination of his employment by the Company for Cause ( as described in Section
5a above) or the voluntary termination of employment by the Executive (as
described in Section 5c above) (the “Noncompetition Term”), Executive agrees not
to, directly or indirectly, either through any form of ownership or as an
individual, director, officer, principal, agent, employee, employer, adviser,
consultant, shareholder, partner, member or in any other individual or
representative capacity whatsoever, either for his own benefit or for the
benefit of any person or entity, without the prior written consent of the
Company (which consent may be withheld in its sole discretion), engage in any
manner in the Business (as defined below) in the metropolitan areas of Houston,
Xxxxxx, Xxxxxx or San Antonio, Texas or any other metropolitan area in the
United States where the Company owns or leases more than $10 million in gross
asset value of assets as of the date of this Agreement or as of the date of
termination. For purposes of this Section 9, “Business” means the
acquisition, development, management, ownership, leasing and/or disposition
of
retail shopping centers and/or any capital raising activities related
thereto.
Executive
understands and agrees that his covenants contained in this Section 9 are
being given in consideration of the numerous mutual promises and agreements
contained in this Agreement between the Company and Executive, including,
without limitation, those involving, employment, compensation, and Confidential
Information, and in order to protect the Company’s Confidential Information and
other legitimate business interests and to reduce the likelihood of irreparable
damage which would occur in the event such information is provided to or used
by
a competitor of the Company.
Notwithstanding
the foregoing, Executive shall not be deemed to have violated this
Section 9 solely by reason of his passive ownership of 10% or less of the
outstanding equity interests of any public entity.
Executive
hereby acknowledges that the geographic boundaries, scope of prohibited
activities and the time duration of the provisions of this Section 9 are
reasonable and are no broader than are necessary to protect the legitimate
business interests of the Company. This noncompetition provision can
only be revoked or modified by a writing signed by both Executive and the Chief
Executive Officer of the Company, as approved by the Board, which specifically
states an intent to revoke or modify this provision. Executive
acknowledges that the Company would not employ him or provide him with access
to
its Confidential Information but for his covenants or promises contained in
this
Section.
The
Company and Executive agree and stipulate that the agreements and covenants
not
to compete contained in this Section 9 hereof are fair and reasonable in
light of all of the facts and circumstances of the relationship between
Executive and the Company; provided however, Executive and the Company are
aware
that in certain circumstances courts have refused to enforce certain terms
of
agreements not to compete. Therefore, in furtherance of, and not in
derogation of the provisions of this Section 9, the Company and Executive
agree that in the event a court should decline to enforce any terms of any
of
the provisions of this Section 9, that this Section 9 shall be deemed
to be modified or reformed to restrict Executive’s competition with the Company
to the maximum extent, as to time, geography and business scope, which the
court
shall find enforceable; provided however, in no event shall the provisions
of
this Section 9 be deemed to be more restrictive to Executive than those
contained herein.
Executive
agrees that during the Noncompetition Term, he shall immediately notify the
Company in writing of any employment, work or business he undertakes with or
on
behalf of any person (including himself) or entity, whether or not for
compensation.
10. Non-Interference
or Solicitation. Executive agrees that during the Employment
Period and for an additional period of one (1) year following the termination
of
his employment with the Company (for whatever reason) that neither he nor any
individual, partner(s), limited partnership, corporation or other entity or
business in which Executive has any affiliation and influence, or any employee
of such entity or business that Executive influences, will request, solicit,
encourage, induce or attempt to influence, directly or indirectly, (i) any
employee of the Company to terminate his or her employment with the Company,
or
(ii) any past or present customer, client, partner, investor or contractor
of the Company to terminate or limit his, her or its relationship with the
Company, or in any way interfere with the relationship between the Company
and
any such customer, client, partner, investor or contractor.
11. Return
of Documents. Executive agrees that if Executive’s
employment with the Company is terminated (for whatever reason), Executive
shall
not take with Executive, but will leave with the Company, all, Confidential
Information, records, files, memoranda, reports, documents and other information
that is the property of the Company, in whatever form (including on computer
disk), and any copies thereof, or if such items are not on the premises of
the
Company, Executive agrees to return such items immediately upon Executive’s
termination or any time at the request of the Company. Executive
acknowledges that all such items are and remain the property of the
Company.
12. Severability
and Reformation. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future law, and
if
the rights or obligations of Executive or the Company under this Agreement
would
not be materially and adversely affected thereby, such provision shall be fully
severable, and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part thereof,
the remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by the illegal, invalid or unenforceable provision
or
by its severance herefrom, and in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible, and the Company and
Executive hereby request the court to whom disputes relating to this Agreement
are submitted to reform the otherwise unenforceable provision in accordance
with
this Section 12.
13. Injunctive
Relief. Executive acknowledges that the breach of any of the
covenants contained herein, including, without limitation, the non-disclosure
covenants contained in Section 8, the non-competition covenants in
Section 9 and the non-interference or solicitation covenants in
Section 10, will give rise to injury to the
Company. Accordingly, Executive agrees that the Company shall be
entitled to injunctive relief to prevent or cure breaches or threatened breaches
of the provisions of this Agreement and to enforce specific performance of
the
terms and provisions hereof in any court of competent jurisdiction, in addition
to any other legal or equitable remedies, which may be
available. Executive further acknowledges and agrees that the
enforcement of a remedy hereunder by way of injunction shall not prevent
Executive from earning a reasonable livelihood. Executive further
acknowledges and agrees that the covenants contained herein are necessary for
the protection of the Company’s legitimate business interests and are reasonable
in scope and content. Nothing herein shall prevent either party from
pursuing a legal and/or equitable action against the other party for any damages
caused by such party’s breach of this Agreement.
14. Release
Agreement. Executive agrees that, as a condition to
receiving any severance benefits or payments under this Agreement, including
those referenced in Sections 5 or 6 of this Agreement, Executive shall execute
a
general release agreement in a form reasonably acceptable to the Company, which
shall include, without limitation, a waiver and release of all claims arising
out of Executive’s service as an employee of the Company, its subsidiaries or
any of their affiliates and the termination of such
relationship. Such claims include all claims based on any federal,
state or local statute, including without limitation the Age Discrimination
in
Employment Act of 1967, as amended, Title VII of the Civil Rights Act of 1964,
as amended, the Civil rights Act of 1991, as amended, the Employee Retirement
Income Security Act of 1974, as amended, the Xxxxxxxx-Xxxxx Act, and the Texas
Commission on Human Rights Act. Such release agreement shall also
contain a mutual non-disparagement provision.
15. Headings. The
headings used in this Agreement have been inserted for convenience and do not
constitute matter to be construed or interpreted in connection with this
Agreement.
16. Governing
Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY
PRINCIPLE OF CONFLICT OF LAWS THAT WOULD REQUIRE THE APPLICATION OF THE LAW
OF
ANY OTHER JURISDICTION.
17. Venue.
The venue for any dispute arising out of this Agreement or Executive’s
employment with the Company shall be any state or federal court of competent
jurisdiction in Xxxxxx County, Texas. Each party consents to the
personal jurisdiction of the state and federal courts of said county and waives
any objection that such courts are an inconvenient forum.
18. Survival. Except
as otherwise provided herein, Executive’s termination from employment and/or the
termination of this Agreement, for whatever reason, shall not reduce or
terminate Executive’s or the Company’s covenants and agreements set forth
herein.
19. Notices. Any
notice necessary under this Agreement shall be in writing and shall be
considered delivered three days after mailing if sent certified mail, return
receipt requested, or when received, if sent by telecopy, prepaid courier,
express mail or personal delivery to the following addresses:
If
to the
Company:
0
Xxxxxxxx Xxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxx 00000
Attention:
Chief Financial Officer
Telecopy:
(000) 000-0000
If
to
Executive:
Xxxxxxx
X. Xxxxxxxx
0000
Xxx
Xxxx
Xxxxx
Xxxx Xxxxxx, Xxxxx 00000
20. Entire
Agreement. Except as provided herein, this Agreement
embodies the entire agreement and understanding of the parties hereto in respect
of the subject matter contained herein and supersedes all prior conflicting
or
inconsistent agreements, consents and understandings relating to such subject
matter. The parties acknowledge and agree that there is no oral or
other agreement between the Company and Executive, which has not been
incorporated in this Agreement. This Agreement may only be modified
pursuant to Section 24.
21. No
Waiver. The forbearance or failure of one of the parties
hereto to insist upon strict compliance by the other with any provisions of
this
Agreement, whether continuing or not, shall not be construed as a waiver of
any
rights or privileges hereunder. No waiver of any right or privilege
of a party arising from any default or failure hereunder of performance by
the
other shall affect such party’s rights or privileges in the event of a further
default or failure of performance.
22. Assignment. This
Agreement shall be binding upon and inure to the benefit of the Company’s
successors and Executive’s personal or legal representatives, executors,
administrators, heirs, distributees, devisees and legatees. This
Agreement shall not be assignable by Executive, it being understood and agreed
that this is a contract for Executive’s personal services. This
Agreement shall not be assignable by the Company except that the Company shall
require any successor to all or substantially all of the Company’s business or
assets whether direct or indirect, by purchase, merger, consolidation or
otherwise), to expressly assume and agree to perform this Agreement in the
same
manner and to the same extent that the Company would be required to perform
it
if no such succession had taken place. Failure of the Company to
obtain such assumption and agreement as part of any such succession shall be
a
breach of this Agreement and shall entitle Executive to resign from the employ
of the Company and to receive the termination benefits hereunder as if he
terminated his employment for Good Reason. References in this
Agreement to the “Company” include the Company as hereinbefore defined and any
successor to the Company’s business, assets or both.
23. Binding
Effect. This Agreement shall be binding on and inure to the
benefit of the parties and their respective permitted successors and
assigns.
24. Modification. This
Agreement may be modified only by a written agreement signed by both
parties. Any such written modification may only be signed by Chief
Executive Officer of the Company.
25. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original instrument, and all of which together shall constitute
one and the same Agreement.
26. Section
409A. Notwithstanding any other language in this Agreement,
Executive and the Company agree that if Executive is deemed to be a specified
employee under Section 409A of the Code, or any successor or similar provision,
the payment of the severance amounts described in Sections 5 and 6 above shall
be payable on the first day of the seventh month after the date of
termination.
IN
WITNESS WHEREOF, the parties hereto have executed this Executive Employment
Agreement as of the day and year first above written.
|
|
By: | /s/ X. Xxxx Xxxxxx |
| Name: | X. Xxxx Xxxxxx | |
| Title: | Chief Executive Officer |
