Exhibit 10.7
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made as of October 1, 2001,
between CORNERSTONE REALTY INCOME TRUST INC., (the "Company"), and XXXXX X.
XXXXX (the "Employee").
RECITALS
A. The Company is in the business of buying and managing residential real
estate properties.
B. The Employee has extensive knowledge in various aspects of this
business, and has been employed by the Company for some time.
C. The Company wishes to continue its relationship with the Employee, and
both parties desire to reduce their agreement concerning employment to writing.
NOW, THEREFORE, in consideration of the foregoing and the agreements
contained herein, the parties hereto agree as follows:
1. Employment. The Company hereby employs the Employee as Chief Operating
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Officer, and the Employee hereby accepts such employment for a period of five
(5) years beginning on October 1, 2001 and terminating on September 30,2006 or
unless terminated sooner as provided herein.
2. Duties. During her employment the Employee shall hold such positions and
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perform such services as may be assigned to her from time to time by the Chief
Executive Officer or the Board of Directors of the Company. The Employee shall
report to the Chief Executive Officer or such other officer as may be designated
from time to time by the Board of Directors. The Employee shall devote her
attention and energies, and shall use her best efforts, to advance the business
and welfare of, the Company on a full-time basis.
3. Compensation.
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(a) The Employee shall be compensated on the basis of an annual salary of
$190,000, which shall be payable in monthly or more frequent installments in
accordance with the Company's standard payroll practices. The Company shall
review the Employee's performance at the end of each fiscal year of the Company
and, in its sole discretion and based on the Employee's performance and/or the
financial condition of the Company, may either maintain or increase her salary.
Any such change in the salary of the Employee shall not affect the other terms
and conditions of this Agreement, which shall remain in full force and effect.
(b) In addition to the salary set forth in Section 3(a), the Employee shall
be eligible to receive an annual bonus to be determined by the Board of
Directors in accordance with the incentive compensation program or stock award
or stock option program as may be in effect from time to time during the term of
the Employee's employment for which she is eligible.
4. Benefits. The Company shall provide the Employee with vacation, group
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life insurance, group medical insurance and other such benefits as may be
consistent with the Company's policies applicable to those employees of similar
rank and position. The Company may from time to time add to, reduce, eliminate
or otherwise modify those benefits at its discretion as provided by law.
5. Business Expenses. The Company shall reimburse the Employee for
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reasonable and necessary business expenses, ancillary expenses for travel and
similar items, incurred or expended by the Employee in the performance of her
duties hereunder. Such reimbursement shall be in accordance with the Company's
policy and procedures governing reimbursement of such expenses, which may be
altered or modified from time to time in the Company's sole discretion.
6. Covenant Not to Compete or Interfere.
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(a) The Employee agrees that during the term of her employment and for a
period of one (1) year thereafter if the Employee terminates her employment, she
will not solicit any person employed by the Company to leave such employment for
employment with a competing business.
(b) It is the intention of the parties that this Agreement provide the
Company the maximum protection possible in the geographic areas in which the
Company does business and therefore has legitimate business interests. However,
the parties in no way intend to include a provision which contravenes the public
policy of any state. If, at the time of enforcement of this paragraph, a court
should hold the duration, scope or area of restriction stated herein
unreasonable under the circumstances then existing, the parties agree that the
court may enforce the restrictive covenant set forth in Section 6(a) to the
extent it deems reasonable.
7. Confidentiality. The Employee agrees that, during the term of his
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employment and thereafter, he will not use or allow others to use any
confidential or proprietary information of the Company (in whatever form
received or proposed to be used) in any business or venture if the use would or
could be expected to have any material detrimental effect on the Company or its
business, results of operations, financial condition, reputation or affairs,
whether immediately or at any time in the future.
8. Termination. This Agreement shall terminate automatically on September
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31, 2006 and may be sooner terminated as follows:
(a) The Company may terminate the Employee's employment and its obligations
under this Agreement in the event of the disability of the Employee. For
purposes of
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this Agreement, "disability" means the inability of the Employee to perform the
essential functions of her position, after reasonable accommodation in
accordance with the Americans with Disabilities Act, because of a medically
determinable physical or mental impairment which can be expected to result in
death or to continue for a period of at least six consecutive months, or because
any such condition has continued for a period of six consecutive months. The
Company shall give the Employee or her representative 30 days prior written
notice of its decision to terminate her employment pursuant to this provision,
and upon any such termination the Company shall pay the Employee or her
representative, as the case may be, an amount equal to her then existing annual
salary in a one time lump sum payment. Thereafter, the Company shall have no
further obligations to the Employee under this Agreement other than for such
benefits as it may be required to provide under an applicable benefits policy.
(b) The Company may terminate the Employee's employment and its obligations
under this Agreement at any time without notice for cause. For purposes of this
Agreement, "cause" means (i) the Employee's continued or deliberate neglect of
her duties; (ii) willful misconduct by the Employee injurious to the Company,
whether monetary or otherwise; (iii) the Employee's violation of any code or
standard of ethics generally applicable to employees of the Company; (iv) the
Employee's active disloyalty to the Company; (v) the Employee's conviction of a
felony; (vi) the Employee's habitual drunkenness or drug abuse; (vii) the
Employee's excessive absenteeism unrelated to a disability as described above;
or (viii) the Employee's breach of this Agreement. If the Company terminates the
Employee's employment pursuant to this provision, it shall have no further
obligation to the Employee under this Agreement other than for such benefits as
it may be required to provide under an applicable benefits policy.
(c) This Agreement shall terminate automatically upon the Employee's death.
In this event, the Company shall pay the Employee's personal representative an
amount equal to her then existing annual salary in a one-time lump sum payment
within 30 days of her death. The Company shall have no further obligations to
the Employee under this Agreement other than for such benefits as it may be
required to provide under an applicable benefits policy.
9. Survival of Obligations. The obligations of the Employee under Sections
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6 and 7 of this Agreement shall survive the termination of her employment and
this Agreement, regardless of the reason for or method of termination. Each of
the provisions in these Sections shall be enforceable independently of every
other provision, and the existence of any claim or cause of action the Employee
may have against the Company, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement of these Sections by the
Company.
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10. Enforcement and Severability.
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(a) In the event of a breach or threatened breach by the Employee of any of
the provisions of this Agreement, the Company shall be entitled to an injunction
restraining the Employee from breaching the same. Nothing contained herein shall
be construed as prohibiting the Company from pursuing any other remedies
available to it for such breach or threatened breach, including the recovery of
damages from the Employee. The Employee agrees to pay the Company all its
attorney fees incurred in enforcing its rights under this Agreement.
(b) If any provision of this Agreement is deemed void or unenforceable,
such provision shall not be deemed part of this Agreement, which otherwise shall
remain in full force and effect.
(c) A waiver by the Company of a breach of any provision of this Agreement
by the Employee shall not operate or be construed as a waiver of any subsequent
breach by the Employee.
11. GOVERNING LAW, JURISDICTION AND WAIVER OF JURY TRIAL.
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(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA.
(b) THE PARTIES AGREE THAT ANY AND ALL CAUSES OF ACTION ARISING UNDER THIS
AGREEMENT BY AND BETWEEN THEM SHALL ONLY HAVE JURISDICTION AND VENUE IN THE
CIRCUIT COURT OF HENRICO COUNTY, COMMONWEALTH OF VIRGINIA. THE PARTIES FURTHER
CONSENT TO THE JURISDICTION AND VENUE OF THAT COURT FOR THE RESOLUTION OF SUCH
CAUSES OF ACTION UPON PROPER SERVICE OF PROCESS.
(c) THE PARTIES DESIRE TO AVOID THE ADDITIONAL TIME AND EXPENSE RELATED TO
A JURY TRIAL OF ANY DISPUTES ARISING UNDER THIS AGREEMENT. THEREFORE, THE
PARTIES WAIVE THE RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR COUNTERCLAIM BROUGHT
BY EITHER PARTY AGAINST THE OTHER ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS KNOWINGLY,
FREELY AND VOLUNTARILY GIVEN, IS DESIRED BY BOTH PARTIES, AND IS IN THE INTEREST
OF BOTH PARTIES.
12. Notices. Any notice required or permitted to be given under this
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Agreement shall be sufficient if in writing and given by telex, fax, telegram,
telecopy, hand-delivery or by first class mail, in the case of the Employee, to
either her office or personal residence, or in the case of the Company, to the
Chief Executive Officer or Chairman.
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13. Assignment. This Agreement is personal in nature and may not be
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assigned by the Company without the written consent of the Employee. In the
event of the sale to any person, partnership, corporation or other entity of
substantially all the assets of the Company, the Employee may, at her option,
consent to the assignment of this Agreement or receive at the closing of the
sale a lump sum payment equal to three times her then current annual
compensation to terminate this Agreement.
14. Parachute Tax.
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(a) In the event that the Employee would, except for this paragraph, be
subject to a tax pursuant to Section 4999 of the Internal Revenue Code of 1986,
as amended (the Code), as a result of receiving parachute payments (as defined
in Section 280G(b)(2)(A) and (d)(3) of the Code) pursuant to this Agreement or
any other arrangements between the Company and the Employee, or a deduction
would not be allowed to the Company for all or any part of such payments by
reason of Section 280G(a) of the Code, such payments shall be reduced so that
the aggregate present value (as defined in Section 280G(d)(4) of the Code) of
such payments is an amount equal to one dollar less than an amount equal to
three times the Employees base amount, (as defined in Section 280G(b)(3)(a) and
(d)(1) and (2) of the Code). To achieve such required reduction in aggregate
present value, the Employee shall determine which parachute payments shall be
reduced and the amount of each reduction. To enable the Employee to make such
determination, the Company shall provide the Employee with such information as
is reasonably necessary for such determination.
(b) Prior to making any payment under this Section 14, either party may
request a determination as to whether such payment would constitute a parachute
payment, and, if so, the amount by which the payment must be reduced in
accordance herewith. If such a determination is requested, it shall be made
promptly, at the Company's expense, by independent tax counsel selected by the
Company and approved by the Employee (which approval shall not unreasonably be
withheld). The determination of such tax counsel shall be conclusive and binding
on the parties. The Company shall provide such information as tax counsel may
reasonably request, and such counsel may engage accountants or other experts at
the Company's expense to the extent that they deem necessary or advisable to
enable them to reach a determination.
15. Entire Agreement. This instrument contains the entire agreement of the
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parties, supersedes any prior employment or consulting agreement between the
parties and may be changed only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought. Both parties acknowledge that they have read these terms,
have had the opportunity to consult counsel, and fully understand and freely and
voluntarily agree to the provisions set forth herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
first above written.
CORNERSTONE REALTY INCOME TRUST, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman
/s/ Xxxxx X. Xxxxx
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Employee
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