EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of August, 2005, between X.X. Xxxx,
Inc., a New York corporation with offices and principal place of business
located at 0 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter called the
"Company"), and Xxxxxx Xxxxx (hereinafter called "Xxxxx" or "Employee")
WHEREAS, Xxxxx has rendered distinguished and dedicated service to the
Company for many years, currently serves as a Vice President and his services
have continuing value to the Company; and
WHEREAS, the Company desires to assure continuity of the services of
Xxxxx as a Vice President by means of an Employment Agreement and Xxxxx is
willing to enter into such Agreement upon the terms and conditions hereinafter
set forth; and
WHEREAS, the protection of the Company's Confidential Information (as
defined hereinafter) is vital to the continued successful operation of the
Company's business.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, it is agreed as follows:
1. Nature of Services and Duties:
(A) The Company hereby employs Xxxxx and Xxxxx accepts
employment as a Vice President of the Company.
(B) Xxxxx shall devote his best efforts and substantially all
of his business time to advance the interests of the Company, subject to the
control of the Board of Directors, and subject to and bound by all personnel and
corporate policies
and procedures applicable to employees of the Company. At all times he shall be
furnished office accommodations adequate for the performance of his duties and
compatible with his position as a Vice President of the Company.
2. Term of Employment:
(A) Xxxxx'x employment hereunder shall commence as of August
1, 2005 and shall end at the close of business on July 31, 2008, subject to
earlier termination as provided in this Agreement in the event of Xxxxx'x
retirement or permanent disability (the "Term of Employment"). Leave of absence
for any period of time authorized by the Board of Directors of the Company shall
not be deemed an interruption, cessation or termination of the terms of Xxxxx'x
employment.
(B) Xxxxx may, at his option, elect to retire at any time upon
at least ninety (90) days prior written notice to the Company.
(C) Nothing in this Agreement shall prevent the Company from
terminating the employment at any time for cause. The following events shall
constitute cause: (i) fraud, criminal conduct, misappropriation, embezzlement or
the like; or (ii) willful misconduct of the Employee in connection with the
performance of his duties under this Agreement; or (iii) violation of any
material provision of this Agreement.
3. Compensation:
(A) The Company agrees to compensate Xxxxx for his services,
and Xxxxx agrees to accept as compensation for his services, during the period
of his employment hereunder or any
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renewal thereof, the sum of not less than One Hundred Seventeen Thousand Four
Hundred Ninety-Nine ($117,499.00) Dollars per annum, payable in equal monthly or
other installments in accordance with the general practice of the Company with
respect to Senior Executives. Xxxxx shall be entitled to such increases and
additional payments as may be determined from time to time by the Board of
Directors in its discretion.
(B) To the extent to which he may qualify, he shall, in
addition, be entitled to participate in all plans now or hereafter adopted for
Executives or employees, including, but not limited to, pension, group insurance
or medical plans, and in any other employee benefit plans, whether similar to or
different from any of the foregoing categories, offered or made available by the
Company.
(C) The Company shall reimburse Xxxxx upon submission of
vouchers by him, for all out-of-pocket expenses for entertainment, travel,
meals, hotel accommodations and the like, incurred by him in the interest of the
business of the Company.
(D) The Company shall have the right, at its option, to
allocate payment of Xxxxx'x compensation or expenses, or any part thereof, among
its subsidiaries or divisions, if any, to the extent applicable as its Board of
Directors may from time to time direct.
4. Restrictive Covenant:
(A) Xxxxx acknowledges that: (i) due to the nature of his
duties, he has and will continue to have access to and will acquire confidential
information relating to the business and
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operation of the Company; and (ii) Xxxxx'x expertise and background would enable
him to compete with the business of the Company, which is the ownership,
control, development, management and operation of real property;
(B) Xxxxx shall not at any time, either during or after his
employment, directly or indirectly, divulge, disclose or communicate to any
person or entity, any non-public information affecting or relating to the
business of the Company (the "Confidential Information"), including without
limitation the names and addresses of its tenants, sub-tenants and prospective
or potential tenants, marketing information, information regarding the nature
and extent of its ownership interests in real property, leasing information,
including, but not limited to, rents, expiration dates, rights of renewal, or
any other lease terms, costs and expenses of operation, income, its manner of
operation, its plans, its financial arrangements or condition, its policies and
procedures, or contracts and other relationships with and information regarding
other individuals or entities, including, but not limited to employees and
independent contractors, regardless of whether any or all of the foregoing
matters would be deemed confidential material or important, the parties
stipulating that as between them such information is confidential, important and
gravely affects the successful conduct of the business of the Company and its
goodwill and that any breach of this Section is a material breach of this
Agreement. Upon Xxxxx'x termination of employment, he shall immediately deliver
to the Company all of the Company's
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Confidential Information and shall not retain in any copies of the Company's
Confidential Information without the express prior written consent of the
Company.
(C) In consideration of the amounts paid and payable pursuant
to this Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Xxxxx hereby agrees as follows:
1. Except under and pursuant to this Agreement, or as
otherwise consented to in writing by the Company from time to time, during the
Term of Employment, Xxxxx shall not at any time or place whatsoever, either
directly or indirectly, engage or be interested as owner, stockholder, partner,
member director, officer, employee, independent contractor or otherwise, (either
with or without compensation), in any person, business or entity which is
directly or indirectly in competition with the Company, or any of its
subsidiaries. This provision shall not be construed to prohibit investment by
Xxxxx in publicly traded securities.
2. During the twenty-four (24) month period
immediately following the termination of Xxxxx'x employment, without regard to
the reason for such termination, Xxxxx shall not directly or indirectly, whether
on Xxxxx'x own account or as an employee, partner, member, manager, officer or
director of, or consultant or independent contractor to, or holder of more than
five (5%) percent of the equity interest in any other entity, within a fifteen
(15) mile radius of the then principal place of business of the Company, do any
of the following:
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(a) enter into or engage in any business which is competitive
with the Company's Business.
(b) induce any person employed by the Company, to join
a corporation, partnership, joint venture, limited liability company or
other entity in any such capacity, directly or indirectly, if such business is
competitive with that of the Company or if such business, or its successors or
assigns, competes with the Company or if such business, or its successors or
assigns, solicits tenants of the Company.
(c) employ, directly or indirectly, any of the Company's
Confidential Information in whole or in any material part.
(D) For the purposes of this Agreement, a business will be
deemed competitive with the Company's Business if it engages in any manner in
the ownership, control, development, management and/or operation of real
property.
(E) Xxxxx hereby agrees that, in the event of his breach of
any of the covenants set forth in this Section 4, the Company shall be entitled
to obtain appropriate equitable relief, including, without limitation, a
permanent injunction or similar court order enjoining Xxxxx from violating any
of such provisions, and that pending the hearing and the decision on the
application for permanent equitable relief, the Company shall be entitled to a
temporary restraining order and a preliminary injunction, all at Xxxxx'x
expense, including reasonable attorney's fees and disbursements, provided,
however, no such remedy shall be construed to be the exclusive remedy of the
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Company and any and all such remedies shall be held and construed to be
cumulative and not exclusive of any rights or remedies, whether at law or in
equity, otherwise available under the terms of this Agreement, at common law, or
under federal, state or local statutes, rules and regulations.
(F) Each provision contained in this Section 4 is intended to be
independent of the others, and shall survive and shall remain binding and
enforceable, notwithstanding that any of the other provisions may be declared
invalid, void or unenforceable and, in the case of the geographical and time
limitations, may be modified in geographical scope or duration by any court of
competent jurisdiction to the extent necessary to make such provision valid and
enforceable.
(G) The provisions of this Section 4 shall survive the termination of
Xxxxx'x employment.
(H) If any present or future statute of the State of New York provides
protections or remedies relating to Confidential Information, which are greater
than the protections and remedies provided by this Agreement, then the Company
shall also have the benefit of such additional statutory protections and
remedies.
(I) The provisions of this Section 4 shall not apply to work of any
kind performed by the Employee for any entity which is affiliated or related to
the Company, including, but not limited to Xxxxxxxxx Enterprises, Inc.
5. Disability:
(A) If Xxxxx becomes permanently disabled (as defined herein)
during the period of his employment, the Company may
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terminate his employment on not less than three (3) months' prior notice, but
the Company shall nevertheless pay Xxxxx his compensation, as then in effect,
for the balance of his Term of Employment.
(B) Xxxxx shall be deemed permanently disabled if either (i)
he and the Company so agree, or (ii) after a period of ninety (90) days during
which Xxxxx is continuously unable, as a result of any physical or mental
ailment, to perform his major duties and responsibilities as provided in Section
1, he is, either at his (or on his behalf) or the Company's request, examined by
New York University Medical Center, New York, New York, or any successor
organization, or by any other Hospital in the City of New York of comparable
stature, mutually agreed upon (hereinafter called the "Hospital"), and the
Hospital certifies that, in the opinion of its Medical Examiners, Xxxxx'x health
is such that, for a period of ninety (90) days or more from that date, Xxxxx is
and probably will be incapacitated, physically or mentally, from performing, or
that it would seriously impair his health to perform, his major duties and
responsibilities as provided in Section 1 hereof. If, for any reason, the
Hospital cannot or refuses to pass on such question, such certificate may be
obtained from a majority of a Board of three (3) licensed physicians, members of
the American Medical Association (New York City Division), one (1) to be chosen
by Xxxxx or on his behalf, one (1) by the Company, and the third (3rd) by the
other two (2), if they can agree thereon, otherwise by the then President of the
New York State Medical Association. The certificate of two (2)
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of the said physicians shall be final and binding upon both parties hereto.
6. Assignability of This Agreement:
This Agreement is personal and shall not be assignable by
Xxxxx and its terms, covenants and conditions shall be binding upon and inure to
the benefit of the Company, or its successors and assigns.
7. Interpretation of This Agreement:
This Agreement shall be construed and enforced in accordance
with, and governed by, the laws of the State of New York, applicable to
agreements made and to be performed in New York. This Agreement supersedes all
prior Agreements and understandings relating to the subject matter hereof, and
this Agreement may not be modified or amended or any term or provision thereof
waived or discharged except in writing signed by the party against whom such
amendment, modification, waiver or discharge is sought to be enforced. No waiver
of any provision of this Agreement shall be valid unless in writing and signed
by the person or party to be charged.
The headings of this Agreement are for purpose of reference
only and shall not limit or otherwise affect the meaning thereof.
Whenever the singular is used in this Agreement and when
required by the context, the same shall include the plural.
This Agreement may be executed in one or more counterparts
each of which shall be deemed an original.
8. Notices:
Any notices that may, at any time, be required to be
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given hereunder shall mean written notice and be addressed by Registered or
Certified Mail as follows, unless a different address be furnished by Registered
or Certified Mail to the other party:
If to the Company: at 0 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
If to Xxxxx: at 000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by its President, attested by its Secretary and its corporate seal affixed
hereunto, and Xxxxx has affixed his hand and seal as of the date first above
written.
X.X. Xxxx, Inc.
By: -----------------------------
Xxxxx X. Xxxxxxx, President
(SEAL)
ATTEST:
------------------------------
Xxxxxxxxx Xxxxxxxx, Secretary
-----------------------------
Xxxxxx Xxxxx
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STATE OF NEW YORK )
)ss.:
COUNTY OF )
On this day of , 2005, before me, the individual,
personally appeared Xxxxx X. Xxxxxxx, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person on behalf of which the individual acted, executed the instrument
-----------------------------
Notary Public
STATE OF NEW YORK )
)ss.:
COUNTY OF )
On this day of , 2005, before me, the individual,
personally appeared Xxxxxx Xxxxx, personally known to me or proved to me on the
basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person on behalf of which the individual acted, executed the instrument
-----------------------------
Notary Public
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