Exhibit 10.29
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Employment Agreement") is entered into
as of the 1st day of April, 1999 between KONOVER PROPERTY TRUST, INC., a
Maryland corporation (the "Company"), and XXXXXXX XXXXX XXXX (the "Executive")
for employment commencing on the Effective Date (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, the Company seeks to employ the Executive as Senior Vice
President of the Company and the Executive agrees to be so employed.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. Employment.
(a) The Company hereby employs the Executive as Senior Vice
President of the Company and the Executive hereby accepts such employment, on
the terms and subject to the conditions hereinafter set forth.
(b) During the term of her employment under this Employment
Agreement and any extension hereof (all references herein to the term of this
Employment Agreement shall include any extension hereof), the Executive shall be
and have the title of Senior Vice President of the Company and shall devote her
entire business time (not less than 40 hours per week in the aggregate) and all
reasonable efforts to her employment hereunder, and shall perform diligently
such duties, as are customarily devoted or performed by senior vice-presidents
of companies similar in size to the Company, together with such other duties as
may be reasonably requested from time to time by the Board of Directors of the
Company, which duties shall be consistent with her position as set forth above
and as provided in Paragraph 2; provided, however, that business activities by
the Executive with respect to passive investments, so long as such activities do
not, alone or in the aggregate, materially interfere with the Executive's
performance of her duties as described in this Paragraph l(b), will not be
deemed inconsistent with the requirements of this Paragraph l(b); and, provided,
further, however, that the parties hereto acknowledge that Executive will be
employed as President of RMC/Konover Property Trust LLC, a Delaware limited
liability company, and agree that any business time and efforts devoted by
Executive as President of RMC/Konover Property Trust shall not be deemed
inconsistent with the requirements of this Paragraph 1(b).
(c) As the Company is headquartered in North Carolina and
Executive will work from the Company's Tampa, Florida office for the Company,
the parties agree to work together to mutually accommodate both Executive and
the Company.
2. Term and Positions.
(a) Subject to the provisions for extension or termination
hereinafter stated, the term of this Employment Agreement shall begin as of
April 1, 1999 (the "Effective Date") and shall continue through February 28,
2002 (the "Expiration Date"). As of the Expiration Date and each successive
anniversary thereof, such term automatically shall be extended for three (3)
additional years, unless; (i) this Employment Agreement is terminated as
provided in Paragraph 5 or (ii) either the Company or the Executive shall give
written notice to the other at least thirty (30) days before the Expiration Date
or any subsequent annual anniversary thereof, that this Employment Agreement
shall not be so extended but shall terminate upon the expiration of the
then-existing term (for example, unless such written notice of non-extension is
given on or prior to January 29, 2002, the term of this Employment Agreement
automatically will be extended until February 28, 2005).
(b) The Executive shall be entitled to serve as Senior Vice
President of the Company. For service as an officer and employee of the Company,
the Executive shall be entitled to the full protection of the applicable
indemnification provisions of the Restated Certificate of Incorporation and
Bylaws of the Company, as the same may be amended from time to time, which
indemnifications shall remain effective after termination of this Employment
Agreement with respect to Executive's actions and inactions during the term
hereof.
(c) If:
(i) the Company materially changes the Executive's
duties and responsibilities as set forth in Paragraphs 1(b) and 2(b)
without her consent;
(ii) the Executive's place of employment is located
more than five (5) miles from the existing office of the Company
located at 0000 X. Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx without her consent;
(iii) there occurs a material breach by the Company
of any of its obligations under this Employment Agreement, which breach
has not been cured in all material respects within ten (10) days after
the Executive gives notice thereof to the Company;
then in any such event the Executive shall have the right to terminate her
employment with the Company, but such termination shall not be considered a
voluntary resignation or termination of such employment or of this Employment
Agreement by the Executive but rather a discharge of the Executive by the
Company "without cause" pursuant to Paragraph 5(a)(iii). The Executive may
exercise such right of termination at any time within three (3) months following
the occurrence of the applicable event described in (i) and (iii) of this
Paragraph 2(c), and within six (6) months following the occurrence of the
applicable event described in (ii) of this Paragraph 2(c).
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(d) The Executive shall be deemed not to have consented to any
written proposal calling for a material change in her duties and
responsibilities unless she shall give written notice of her consent thereto to
the Board of the Company within fifteen (15) days after receipt of such written
proposal. If the Executive shall not have given such consent, the Company shall
have the opportunity to withdraw such proposed material change by written notice
to the Executive given within ten (10) days after the end of said fifteen (15)
day period.
3. Compensation.
During the term of her employment under this Employment
Agreement the Company shall pay or provide, as the case may be, to the Executive
the compensation and other benefits and rights set forth in this Paragraph 3.
All restricted stock given as compensation shall be subject to the Company's
1996 Restricted Stock Plan.
(a) Annual Base Salary. The Company shall pay to the Executive
a base salary payable in accordance with the Company's usual pay practices (and
in any event no less frequently than monthly) of (i) cash payments of One
Hundred Thirty Thousand and No/100 Dollars ($130,000.00) per annum and (ii) such
increases (but not decreases) from time to time (based upon the performance of
the Company and the Executive) as determined by the Board or the Company's
Executive Compensation Committee.
(b) Guaranteed Annual Bonus. For each of the twelve (12) month
periods ending on the last day of February 2000, 2001 and 2002, the Company
shall pay to the Executive a cash bonus of One Hundred Sixty Six Thousand Six
Hundred Sixty Seven and No/100 Dollars ($166,667.00). The bonus payable pursuant
to this Paragraph 3(b) shall be paid to Executive in equal semi-annual
installments on the last day of August and February throughout the period to
which such bonus relates. For example, the bonus to which Executive is entitled
for the twelve (12) month period ending on February 29, 2000, shall be paid
fifty percent (50%) on August 31, 1999, and fifty percent (50%) on February 29,
2000.
(c) Discretionary Annual Bonus. In addition to the other
amounts described in this Paragraph 3, the Company may pay to the Executive
bonus compensation on a calendar year basis pursuant to the terms of the
incentive compensation plan established by the Board from time to time, not
later than March 1 following each calendar year. Such bonus compensation may be
payable in the form of cash or Common Stock of the Company. In the event such
bonus is paid in the form of Common Stock, the determination of shares issued
may be based on the cash equivalent divided by the market price of the Common
Stock on or about the date of determination of the bonus compensation by the
Board. Such shares will be increased by 50%, and such shares shall automatically
vest on the third anniversary of the date of issuance (for example, March 1,
2003 for shares issued March 1, 2000) unless the Executive
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voluntarily terminates her employment prior to such anniversary date or her
employment is terminated for "cause" (see Paragraph 5 (a) (ii)).
(d) Employee Benefits.
(i) The Company shall provide to the Executive such
medical, hospitalization and dental insurance for herself, her spouse
and eligible family members, as may be available to other officers of
the Company and term life insurance in the amount of not less than
$325,000.
(ii) The Executive shall participate in all
retirement and other benefit plans of the Company generally available
from time to time to officers of the Company and for which the
Executive qualifies under the terms thereof (and nothing in this
Employment Agreement shall or shall be deemed to in any way affect the
Executive's rights and benefits thereunder except as expressly provided
herein).
(iii) The Executive shall be entitled to such periods
of vacation and sick leave allowance each year as are determined by the
Company's Executive Compensation Committee for officers generally;
provided that Executive shall be entitled to not less than six weeks
(thirty days) of vacation each year, of which four weeks (twenty days)
shall be compensated.
(iv) The Executive shall be entitled to participate
in any equity or other employee benefit plan that is generally
available to senior executive officers, as distinguished from general
management, of the Company. The Executive's participation in and
benefits under any such plan shall be on the terms and subject to the
conditions specified in the governing document of the particular plan.
(e) Expense Reimbursement. The Company shall reimburse the
Executive or provide her with an expense allowance during the term of this
Employment Agreement for travel, entertainment and other expenses reasonably and
necessarily incurred by the Executive in connection with the Company's business,
including all cellular phone charges. The Executive shall furnish such
documentation with respect to reimbursement to be paid hereunder as the Company
shall reasonably request.
(f) Registered Commissions Payable. Executive shall be
entitled to twenty percent (20%) of the gross commissions listed on Exhibit A
attached hereto and incorporated herein by this reference (as such Exhibit may
be amended from time to time by the mutual agreement of the parties), as and
when such commissions are received by the Company and/or any Affiliate thereof.
(g) Development Deals. Executive shall be a twenty five
percent (25%) partner (defined as having twenty five percent (25%) of the
Company's ownership
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interest) with respect to the land development deals listed on Exhibit B
attached hereto and incorporated herein by this reference (as such Exhibit may
be amended from time to time by the mutual agreement of the parties). Executive
may, at her sole discretion, amend Exhibit B prior to March 31, 2000 to replace
up to four (4) of the land development deals listed on Exhibit B with other land
development deals prior to March 31, 2001. The parties hereto acknowledge and
agree that (x) neither the Company nor any Affiliate thereof will be entitled to
participate in the ownership of any of the land development deals listed on
Exhibit C attached hereto and incorporated herein by this reference (provided,
however, that the Company shall be entitled to participate in the development
fees for such deals), and (y) any participation by Executive with respect to
such land development deals, and any efforts of Executive in connection
therewith, shall not be deemed to violate any provisions of this Employment
Agreement.
(h) Redevelopment Deals. Executive shall be entitled to (x) a
cash payment of One Hundred Sixty Two Thousand five hundred and No/100 Dollars
($162,500.00) on the Effective Date, and (y) thirty two and one half percent
(32.5%) of all project development fees earned by the Company and/or any
Affiliate thereof prior to the Expiration Date with respect to third-party
development deals, as and when such fees are received by the Company or such
Affiliate, as the case may be; provided, however, that the cash payment
described in clause (x) shall be treated as an advance of amounts to which
Executive is entitled pursuant to clause (y); and, provided further, that the
aggregate amount payable to Executive pursuant to this Paragraph 3(h) shall not
exceed Six Hundred Fifty Thousand and No/100 Dollars ($650,000.00). For purposes
of this Agreement, the term "third-party" shall mean any person in which the
Company does not have a direct ownership interest. At the discretion of the
Company, the amounts payable to Executive pursuant to clause (y) of the
preceding sentence may be paid in the form of cash or stock of the Company.
(i) Additional Management Fees. If, at any time prior to the
second anniversary of the Effective Date, Executive procures any new fee-managed
third-party business for the Company, then, upon the execution of the management
contract with respect to such new business, Executive shall be entitled to a
lump-sum fee of two hundred percent (200%) of the annual net profit to be
realized by the Company pursuant to such contract. For purposes of determining
"annual net profit," the Company shall apply a cost factor of 2%. For example,
if the annual gross management fee to the Company is 5%, the annual net profit
shall be 5% minus 2%, or 3%, and the lump-sum fee payable to Executive shall be
6%, one-quarter of which shall be payable on the six-month anniversary date of
the management contract, provided the management contract is still in effect,
otherwise no payment shall be due, one-quarter of which shall be payable on the
one-year anniversary date of the management contract, provided the management
contract is still in effect, otherwise no payment shall be due, one quarter of
which shall be payable on the eighteen-month anniversary date of the management
contract, provided the management contract is still in effect, otherwise no
payment shall be due, and the remaining one-quarter shall be payable on the
two-year anniversary date of the
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management contract, provided the management contract is still in effect,
otherwise no payment shall be due.
(j) Property Sales.
(i) If, on or before the fifth (5th) anniversary of
the Effective Date, the Company or any Affiliate thereof acquires any
properties owned by Publix Supermarkets, Inc., or any Affiliate
thereof, then, on the closing date of such acquisition, (x) Rice Realty
Group, Inc., or its assignee, shall be entitled to a fee (but only if
such acquisition is effected through an outside broker), and (y)
Executive shall be entitled to a fee (if such acquisition is not
effected through an outside broker), in each case equal to one percent
(1%) of the gross purchase price paid for such properties by the
Company or such Affiliate, as the case may be. In addition, if the
Company has entered into substantial negotiations with respect to any
such acquisition prior to the fifth (5th) anniversary of the Effective
Date, then such fees shall be payable upon the closing of such
acquisition (even if such closing takes place after the fifth (5th)
anniversary of the Effective Date). If the Company would be placed at a
competitive disadvantage with respect to any proposed acquisition by
the payment of any fee that would be payable to Rice Realty Group,
Inc., or its assignee, pursuant to this Section 3(j)(i), with respect
to such proposed acquisition, Rice Realty Group, Inc., or its assignee,
will negotiate with the Company in good faith to modify its fee to the
extent necessary to facilitate the proposed acquisition.
(ii) If, at any time prior to the Expiration Date,
the Company or any Affiliate thereof acquires a property with respect
to which RMC Realty Companies, L.P., a Delaware limited partnership
doing business in Florida as RMC Realty Companies, Ltd., was the
third-party manager or leasing agent immediately prior to the Effective
Date, then, on the closing date of such acquisition, Executive shall be
entitled to a fee of one percent (1%) of the gross purchase price paid
for such property by the Company or such Affiliate, as the case may be
(or such other percentage as may be mutually agreed by the parties).
(iii) If Executive agrees to list with an outside
broker any property owned by an entity of which Executive or any
Affiliate of the Executive is the general partner, then Executive shall
be entitled to fifty percent (50%) of any fees received by the Company
and/or any Affiliate thereof with respect to the sale of such property,
as and when such fees are received by the Company or such Affiliate, as
the case may be.
(iv) If the Company or any Affiliate thereof
purchases a property from an entity of which Executive is the managing
general partner, then, on the closing date of such transaction,
Executive shall be entitled to a fee of one percent (1%) of the gross
purchase price paid for such property by the Company or such Affiliate,
as the case may be).
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(k) Fees Not Cumulative. The fees and other compensation
described Paragraphs 3(f), (g), (h), (i) and (j) are not intended to be
cumulative; provided, however, that if Executive would be entitled to a fee
pursuant to more than one of such sections with respect to any particular
transaction, Executive shall be entitled to whichever of such fees would result
in the greatest payment to Executive.
(l) Definition of Affiliate. For purposes of this Employment
Agreement, (x) the term "Affiliate" of any person any person or entity directly
or indirectly controlling, controlled by, or under direct or indirect common
control with such person and (y) the term "control" shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a person or entity, whether through the ownership of
voting securities, general partner interests, by contract or otherwise, and the
terms "controlling" or "controlled" shall have meanings correlative thereto. The
term "Affiliate" of the Company shall be deemed to include RMC/Konover Property
Trust LLC.
4. Payment in the Event of Death or Permanent Disability.
(a) In the event of the Executive's death or "permanent
disability" (as hereinafter defined) during the term of her employment under
this Employment Agreement, the Company shall pay to the Executive (or her
personal representatives, heirs, successors and assigns in the event of her
death) an amount equal to (i) two (2) times the Executive's then effective
annual base salary, as determined under Paragraph 3(a), plus (ii) the balance of
the payments to which Executive is entitled pursuant to Paragraph 3(b) through
the Expiration Date, plus (iii) a pro rata portion of the bonus applicable to
the calendar year in which such death or permanent disability occurs, as such
bonus is determined under Paragraph 3(c).
(b) The pro rata portion of the bonus described in Paragraph
4(a) shall be paid when and as provided in Paragraph 3(c). The remainder of the
benefit to be paid pursuant to Paragraph 4(a) shall be paid within ninety (90)
days after the date of death or permanent disability, as the case may be.
(c) Except as otherwise provided in Paragraphs 2(b), 3(d),
4(a), 4(b), and 8, and 11, in the event of the Executive's death or permanent
disability, the Executive's employment hereunder shall terminate and the
Executive shall be entitled to no further compensation or other benefits under
this Employment Agreement, except as to that portion of any unpaid salary and
other benefits accrued and earned by her hereunder up to and including the date
of such death or permanent disability, as the case may be, or pursuant to any
agreement between the Company and the Executive related to any Restricted Shares
or Stock Options held by the Executive.
(d) For purposes of this Employment Agreement, the Executive's
"permanent disability" shall be deemed to have occurred after one hundred twenty
(120) days in the aggregate during any consecutive twelve (12) month period, or
after ninety
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(90) consecutive days, during which one hundred twenty (120) or ninety (90)
days, as the case may be, the Executive, by reason of her physical or mental
disability or illness, shall have been unable to discharge her duties under this
Employment Agreement. The date of permanent disability shall be such one hundred
twentieth (120th) or ninetieth (90th) day, as the case may be. In the event
either the Company or the Executive, after receipt of notice of the Executive's
permanent disability from the other, dispute that the Executive's permanent
disability shall have occurred, the Executive shall promptly submit to a
physical examination by the chief of medicine of any major accredited hospital
in the Tampa, Florida, area and, unless such physician shall issue a written
statement to the effect that in his/her opinion, based on his/her diagnosis, the
Executive is capable of resuming her employment and devoting her full time and
energy to discharging her duties within thirty (30) days after the date of such
statement, such permanent disability shall be deemed to have occurred.
5. Termination.
(a) The employment of the Executive under this Employment
Agreement, and the term hereof, may be terminated by the Company:
(i) on the death or permanent disability (as defined
above) of the Executive;
(ii) for "cause" at any time by action of the Board;
or
(iii) "without cause" at any time by action of the
Board.
For purposes hereof, the term "cause" shall mean:
(A) The Executive's fraud, commission of a felony, commission
of an act or series of repeated acts of dishonesty which fraud, felony or
dishonesty is materially inimical to the best interests of the Company, or which
results in material injury to the business reputation of the Company, or the
Executive's willful and repeated failure to perform her duties under this
Employment Agreement, which failure has not been cured within fifteen (15) days
after the Company gives notice thereof to the Executive; or
(B) The Executive's material breach of any material provision
of this Employment Agreement, which breach has not been cured in all substantial
respects within ten (10) days after the Company gives notice thereof to the
Executive.
For purposes hereof, the term "without cause" shall mean any
reason other than those set forth in subparagraphs (a)(i) and (a)(ii) of this
Paragraph 5.
The exercise by the Company of its rights of termination under this
Paragraph 5 shall be the Company's sole remedy in the event of the Executive's
termination, whether for "cause" or "without cause". Upon any termination of
this Employment Agreement, the
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Executive shall be deemed to have resigned from all offices and directorships
held by the Executive in the Company.
(b) The employment of the Executive under this Employment
Agreement, and the term hereof, may be terminated by the Executive at any time,
and for any reason.
(c) In the event of a termination claimed by the Company to be
for "cause" pursuant to Paragraph 5(a)(ii), the Executive shall have the right
to have the justification for said termination determined by arbitration in
Tampa, Florida. In order to exercise such right, the Executive shall serve on
the Company within thirty (30) days after termination a written request for
arbitration. The Company immediately shall request the appointment of a single
arbitrator by the American Arbitration Association and thereafter the question
of "cause" shall be determined under the rules of the American Arbitration
Association applicable to employment disputes, and the decision of the
arbitrator shall be final and binding on both parties except as otherwise
provided by the arbitrator. The parties shall use all reasonable efforts to
facilitate and expedite the arbitration and shall act to cause the arbitration
to be completed as promptly as possible. During the pendency of the arbitration,
the Executive shall continue to receive all compensation and benefits to which
she is entitled hereunder, and if at any time during the pendency of such
arbitration the Company fails to pay and provide all compensation and benefits
to the Executive in a timely manner the Company shall be deemed to have
automatically waived whatever rights it then may have had to terminate the
Executive's employment for cause. Expenses of the arbitration shall be borne
equally by the parties.
(d) In the event of termination pursuant to subparagraph
(a)(i), (a)(ii) or (b) of this Paragraph 5, except as otherwise provided in
Paragraphs 2(b), 2(c), 3(d), 4(a), 4(b) and 11, as applicable, the Executive
shall be entitled to no further compensation or other benefits under this
Employment Agreement, except as to that portion of any unpaid salary and other
benefits accrued and earned by her hereunder up to and including the effective
date of such termination.
(e) In the event of termination pursuant to Paragraph 2(c), or
subparagraph (a)(iii) of this Paragraph 5, the Executive (in addition to any
rights of the Executive to any restricted shares or stock options pursuant to
the terms of other agreements between the Executive and the Company) shall be
entitled to:
(i) severance pay payable within five (5) days of
such termination in a lump sum equal to the sum of (A) the greater of
(x) the total amount of unpaid base salary for the then-unexpired
portion of the term of this Employment Agreement, including any
extended term as provided by Section 2(a) hereof at the then-effective
annual rate of salary, as determined under Paragraph 3(a) and (y) the
amount of one year's base salary at the then-effective annual rate of
salary, (B) the product of the number of years (including fractions)
representing the unexpired term of this Employment Agreement (but not
less than one) times
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an amount equal to the average of the annual bonuses payable to the
Executive under Paragraph 3(c) for the three (3) full calendar years
immediately prior to termination of this Employment Agreement in which
a bonus was payable or such lesser number of full calendar years during
which the Executive was employed hereunder for which a bonus was
payable, and (C) the balance of the payments to which Executive is
entitled pursuant to Paragraph 3(b) through the Expiration Date,
(ii) during a period equal to the greater of one (1)
year or the unexpired term of this Employment Agreement, all other
benefits to which the Executive would have been entitled during the
term of this Employment Agreement had the Executive's employment not
been terminated,
(iii) any other benefits accrued and earned by her
hereunder up to and including the effective date of such termination.
(f) In the event of the termination of her employment pursuant
to Paragraph 2(c) or Paragraph 5(a)(iii), the Executive shall have the option to
be released from her obligations under Paragraph 6(a)(i), by releasing the
Company from its obligations under Paragraph 5(e) hereof (other than those
provided in Paragraph 5(e)(i)(C) and 5(e)(iii)). Such option may be exercised by
the Executive giving the Company notice thereof within five (5) days of such
termination.
(g) In no event shall the Executive have or be deemed to have
any duty to seek employment or otherwise mitigate damages with respect to any
amounts or benefits due to her upon termination of this Employment Agreement as
provided in this Paragraph 5, nor shall any such amount or benefits be reduced
by reason of any other compensation or benefits which the Executive may earn
following termination of this Employment Agreement.
6. Covenants and Confidential Information.
(a) The Executive acknowledges the Company's reliance and
expectation of the Executive's continued commitment to performance of her duties
and responsibilities during the time when she is employed under this Employment
Agreement. In light of such reliance and expectation on the part of the Company
(but subject to Paragraph 5(e), 5(f) and 5(g) above), the Executive shall not,
directly or indirectly:
(i) at any time prior to the date on which
Executive's employment under this Agreement is terminated for any
reason, own, manage, control or participate in the ownership,
management, or control of, or be employed or engaged by or otherwise
affiliated or associated as a consultant, independent contractor or
otherwise with, any corporation, partnership, proprietorship, firm,
association or other business entity (other than the Company
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or any Affiliate thereof) primarily engaged in the business of, or
otherwise engage in the business of, acquiring, owning, developing or
managing shopping centers in the United States; provided, however, that
the ownership of not more than five percent (5%) of any class of
securities (including general partner interests) of any entity shall
not be deemed a violation of this covenant; or
(ii) at any time prior to the date on which
Executive's employment under this Agreement is terminated for any
reason disclose, divulge, discuss, copy or otherwise use or suffer to
be used in any manner, in competition with, or contrary to the
interests of, the Company, any confidential information relating to the
Company's operations, properties or otherwise to its particular
business or other trade secrets of the Company, it being acknowledged
by the Executive that all such information regarding the business of
the Company compiled or obtained by, or furnished to, the Executive
while the Executive shall have been employed by or associated with the
Company is confidential information and the Company's exclusive
property; provided, however, that the foregoing restrictions shall not
apply to the extent that such information (A) is obtainable in the
public domain or known in the industry generally, (B) becomes
obtainable in the public domain or known in the industry generally,
except by reason of the breach by the Executive of the terms hereof,
(c) was not acquired by the Executive in connection with her employment
or affiliation with the Company, (D) was not acquired by the Executive
from the Company or its representatives, or (E) is required to be
disclosed by rule of law or by order of a court or governmental body or
agency; or
(iii) at any time prior to the later of (x) the date
on which Executive's employment under this Employment Agreement is
terminated for any reason or (y) the date that is five (5) years after
the Effective Date, manage or lease or participate in the management or
leasing of any property which was subject to a written management
and/or leasing contract (with the Company as manager and/or leasing
agent) on the date on which Executive's employment under this
Employment Agreement was terminated for any reason; provided, however,
that the provisions of this Paragraph 6(a)(iii) shall apply to any such
property only for so long as such written management or leasing
contract remains in full force and effect.
(b) The Executive agrees and understands that the remedy at
law for any breach by her of this Paragraph 6 may be inadequate and that the
damages following such breach are not readily susceptible to being measured in
monetary terms. Accordingly, it is acknowledged that, upon adequate proof of the
Executive's violation of any legally enforceable provision of this Paragraph 6,
the Company may be entitled to immediate injunctive relief and may obtain a
temporary order restraining any threatened or further breach. Nothing in this
Paragraph 6 shall be deemed to limit the Company's remedies at law or in equity
for any breach by the Executive of any of the provisions of this Paragraph 6
which may be pursued or availed of by the Company.
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(c) The Executive has carefully considered the nature and
extent of the restrictions upon her and the rights and remedies conferred upon
the Company under this Paragraph 6, and hereby acknowledges and agrees that the
same are reasonable in time and territory, are designed to eliminate competition
which otherwise would be unfair to the Company, do not stifle the inherent skill
and experience of the Executive, would not operate as a bar to the Executive's
sole means of support, are fully required to protect the legitimate interests of
the Company and do not confer a benefit upon the Company disproportionate to the
detriment to the Executive.
7. Stock Options. [Intentionally Omitted]
8. Restricted Stock. [Intentionally Omitted]
9. Tax Adjustment Payments. If all or any portion of the amounts
payable to the Executive under this Employment Agreement (together with all
other payments of cash or property, whether pursuant to this Employment
Agreement or otherwise, including, without limitation, the issuance of common
stock of the Company, or the granting, exercise or termination of options
therefor) constitutes "excess parachute payments" within the meaning of Section
280G of the Code that are subject to the excise tax imposed by Section 4999 of
the Code (or any similar tax or assessment), the amounts payable hereunder shall
be increased (in the same manner, to the extent applicable, without duplication,
as provided in (i), (ii) and (iii) below) to the extent necessary to place the
Executive in the same after-tax position as she would have been in had no such
tax assessment been imposed on any such payment paid or payable to the Executive
under this Employment Agreement or any other payment that the Executive may
receive in connection therewith. The determination of the amount of any such tax
or assessment and the incremental payment required hereby in connection
therewith shall be made by the accounting firm employed by the Executive within
thirty (30) calendar days after such payment and said incremental payment shall
be made within five (5) calendar days after such determination has been made.
If, after the date upon which the payment required by this Paragraph 9 has been
made, it is determined (pursuant to final regulations or published rulings of
the Internal Revenue Service, final judgment of a court of competent
jurisdiction, Internal Revenue Service audit assessment, or otherwise) that the
amount of excise or other similar taxes or assessments payable by the Executive
is greater than the amount initially so determined, then the Company shall pay
the Executive an amount equal to the sum of: (i) such additional excise or other
taxes, plus (ii) any interest, fines and penalties resulting from such
underpayment, plus (iii) an amount necessary to reimburse the Executive for any
income, excise or other tax assessment payable by the Executive with respect to
the amounts specified in (i) and (ii) above, and the reimbursement provided by
this clause (iii), in the manner described above in this Paragraph 9. Payment
thereof shall be made within five (5) calendar days after the date upon which
such subsequent determination is made.
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10. Representations and Warranties of the Company.
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland and has
all requisite corporate power and authority to enter into, execute and deliver
this Employment Agreement, fulfill its obligations hereunder and consummate the
transactions contemplated hereby.
(b) The execution and delivery of, performance of obligations
under, and consummation of the transactions contemplated by, this Employment
Agreement have been duly authorized and approved by all requisite corporate
action by or in respect of the Company, and this Employment Agreement
constitutes the legally valid and binding obligation of the Company, enforceable
by the Executive in accordance with its terms.
(c) No provision of the Company's governing documents or any
agreement to which it is a party or by which it is bound or of any material law
or regulation of the kind usually applicable and binding upon the Company
prohibits or limits its ability to enter into, execute and deliver this
Employment Agreement, fulfill its respective obligations hereunder and
consummate the transactions contemplated hereby.
11. Survival. Notwithstanding anything to the contrary contained in
this Employment Agreement, the provisions of Paragraphs 3(b), (f), (g), (h),
(i), (j), (k) and (l) and Paragraph 12 shall survive, and shall continue in full
force and effect following, the termination of this Employment Agreement for any
reason, or the death or permanent disability of the Executive.
12. Indemnification. The Company hereby acknowledges that it will be
operating in Florida under Executive's Florida real estate broker's license. The
Company hereby agrees that it shall indemnify and hold the Executive harmless
from, against and in respect of, any liability, loss, cost, damage, expense or
payment, including reasonable attorneys' fees and expenses, incurred or suffered
by her as a result of the Company's use of Executive's Florida real estate
broker's license.
13. Miscellaneous.
(a) The Executive represents and warrants that she is not a
party to any agreement, contract or understanding, whether employment or
otherwise, which would restrict or prohibit her from undertaking or performing
employment in accordance with the terms and conditions of this Employment
Agreement.
(b) The provisions of this Employment Agreement are severable
and if any one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions and any partially
unenforceable provision to the extent enforceable nevertheless shall be binding
and enforceable.
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(c) The rights and obligations of the Company under this
Employment Agreement shall inure to the benefit of, and shall be binding on, the
Company and its successors and assigns, and the rights and obligations of the
Executive under this Employment Agreement shall inure to the benefit of, and
shall be binding upon, the Executive (other than obligations to perform services
and to refrain from competition and disclosure of confidential information) and
her heirs, personal representatives and assigns.
(d) Any controversy or claim arising out of or relating to
this Employment Agreement, or the breach thereof, shall be settled by
arbitration in accordance with the Rules of the American Arbitration Association
applicable to employment disputes then pertaining in the City of Tampa, Florida,
and judgment upon the award rendered by the arbitrator or arbitrators may be
entered in any court having jurisdiction thereof. The arbitrator or arbitrators
shall be deemed to possess the powers to issue mandatory orders and restraining
orders in connection with such arbitration; provided, however, that nothing in
this Paragraph 12(d) shall be construed so as to deny the Company the right and
power to seek and obtain injunctive relief in a court of equity for any breach
or threatened breach by the Executive of any of her covenants contained in
Paragraph 6 hereof.
(e) Any notice to be given under this Employment Agreement
shall be personally delivered in writing or shall have been deemed duly given
when received after it is posted in the United States mail, postage prepaid,
registered or certified return receipt requested, and if mailed to the Company,
shall be addressed to its principal place of business, attention: President, and
if mailed to the Executive, shall be addressed to her at her home address last
known on the records of the Company, or at such other address or addresses as
either the Company or the Executive may hereafter designate in writing to the
other. All notices provided for hereunder to the parties shall be accompanied by
simultaneous copy of such notice sent to the attorneys for such parties, as
follows:
If to the Executive: Xxxxxxx Xxxxx Xxxx
00000 Xxxxxxxxx xx Xxxxx
Xxxxx, Xxxxxxx 00000
With a copy to: Xxxxxx X. Xxxxxxx, Esq.
Barnett, Bolt, Kirkwood & Long
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
And with a copy to: Xxxxxxxx X. Xxxxxxx, III, Esq.
Blalock, Landers, Xxxxxxx & Xxxxxx
000 00xx Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
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If to the Company: Konover Property Trust, Inc.
00000 Xxxxxxx Xxxxxxx
Xxxxx Xxxxx Xxxx Xxxxx
Xxxx, Xxxxx Xxxxxxxx 00000
Attention: President
Notices sent by Federal Express or similar overnight delivery service shall also
constitute due notice under this Paragraph 12(e), effective upon receipt
thereof.
(f) The failure of either party to enforce any provision or
provisions of this Employment Agreement shall not in any way be construed as a
waiver of any such provision or provisions as to any future violations thereof,
nor prevent that party thereafter from enforcing each and every other provision
of this Employment Agreement. The rights granted the parties herein are
cumulative and the waiver of any single remedy shall not constitute a waiver of
such party's right to assert all other legal remedies available to it under the
circumstances.
(g) This Employment Agreement supersedes all prior agreements
and understandings between the parties made prior to the date hereof and may not
be modified or terminated orally. No modification, termination or attempted
waiver shall be valid unless in writing and signed by the party against whom the
same is sought to be enforced.
(h) This Employment Agreement shall be governed by and
construed according to the laws of the State of North Carolina.
(i) Captions and paragraph headings used herein are for
convenience and are not a part of this Employment Agreement and shall not be
used in construing it.
(j) Where necessary or appropriate to the meaning hereof, the
singular and plural shall be deemed to include each other, and the masculine,
feminine and neuter shall be deemed to include each other.
(k) This Employment Agreement may be executed in multiple
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument. This Employment Agreement
may be executed by facsimile signature.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement
on the day and year first set forth above.
KONOVER PROPERTY TRUST, INC.
a Maryland corporation
Attest: /s/ Xxxxxxx X. Minuitti By: /s/ X. Xxxxxxx Xxxxxx
----------------------- ---------------------
(Corporate Seal) X. Xxxxxxx Xxxxxx
President
Chief Executive Officer
/s/ Xxxxxxx Xxxxx Rice
------------------------
XXXXXXX XXXXX XXXX
KPT PROPERTIES, L.P.,
------------------------------
a Delaware limited partnership
By: X. Xxxxxxx Xxxxxx
------------------------
Name: X. Xxxxxxx Xxxxxx
Title: President & CEO
Solely to acknowledge the
provisions of Paragraphs
3(f), (g), (h), (i), (j)
and (k) of this Employment
Agreement as managing
member of, and on behalf of
RMC/Konover Property Trust
LLC
RICE REALTY GROUP, INC.,
a Florida corporation
By: /s/ Xxxxxxxx X. Xxxx
------------------------
Xxxxxxxx X. Xxxx, President, Solely
to acknowledge the provisions of
Paragraph 3(j)(i) of this Agreement
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