EMPLOYMENT AGREEMENT
DATED AS OF APRIL 30, 1997
BETWEEN
ASR INVESTMENTS CORPORATION
AND
XXX X. XXXXXX
TABLE OF CONTENTS
Page
1. Employment............................................................................................. 1
2. Full Time ............................................................................................. 1
3. Compensation and other Benefits........................................................................ 1
(a) Salary........................................................................................ 1
(b) Bonus......................................................................................... 1
(c) Fringe Benefits............................................................................... 1
(d) Reimbursement................................................................................. 2
4. Term of Employment..................................................................................... 2
(a) Employment Term............................................................................... 2
(b) Termination Under Certain Circumstances....................................................... 2
(c) Result of Termination......................................................................... 3
5. Competition and Confidential Information............................................................... 3
(a) Interests to be Protected..................................................................... 3
(b) Non-Competition............................................................................... 4
(c) Non-Solicitation of Employees................................................................. 4
(d) Confidential Information...................................................................... 4
(e) Return of Books and Papers.................................................................... 5
(f) Disclosure of Information..................................................................... 5
(g) Assignment.................................................................................... 5
(h) Equitable Relief.............................................................................. 5
(i) Restrictions Separable........................................................................ 5
6. Miscellaneous.......................................................................................... 6
(a) Notices....................................................................................... 6
(b) Indulgences................................................................................... 6
(c) Controlling Law............................................................................... 6
(d) Binding Nature of Agreement................................................................... 7
(e) Execution in Counterpart...................................................................... 7
(f) Provisions Separable.......................................................................... 7
(g) Entire Agreement.............................................................................. 7
(h) Paragraph Headings............................................................................ 7
(i) Gender........................................................................................ 7
(j) Number of Days................................................................................ 7
7. Successors And Assigns................................................................................. 7
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of the 30th day of April, 1997,
by and between ASR INVESTMENTS CORPORATION, a Maryland corporation ("Employer"),
and XXX X. XXXXXX ("Employee").
WHEREAS, Employer desires to employ Employee, and Employee
desires to accept such employment, upon the terms and conditions contained
herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants set forth in this Agreement, the parties hereto agree as
follows:
1. Employment.
Employer hereby employs Employee, and Employee hereby accepts
such employment, as Executive Vice President of Employer and in such other
capacities and for such other duties and services as shall from time to time be
mutually agreed upon by Employer and Employee.
2. Full Time Occupation.
Employee shall devote such of Employee's business time,
attention, and efforts to the performance of Employee's duties under this
Agreement as may be necessary or required for the effective conduct and
operations of Employer's business, shall serve Employer faithfully and
diligently, and shall not engage in any other employment while employed by
Employer.
3. Compensation and other Benefits.
(a) Salary. Employer shall pay to Employee, as full
compensation for the services rendered by Employee during Employee's employment
under this Agreement, a salary at a rate of $100,000 per annum to be paid in
equal monthly installments, or in such other periodic installments upon which
Employer and Employee shall mutually agree.
(b) Bonus. Employee shall be eligible to receive an
annual bonus in such an amount, if any, to be determined by a committee composed
of the non-management directors of Employer based upon such factors as may be
deemed relevant by the committee, including the performance of Employee.
(c) Fringe Benefits. Employee shall be entitled to
participate in any group insurance, pension, retirement, vacation, expense
reimbursement or other plans, programs, or benefits approved by the Board of
Directors and made available from time to time to employees of Employer
generally during the term of Employee's employment hereunder. The foregoing
shall not obligate Employer to adopt or maintain any particular plan, program,
or benefit.
(d) Reimbursement. Employer shall reimburse Employee
for all travel and entertainment expenses and other ordinary and necessary
business expenses incurred by Employee in connection with the business of
Employer and Employee's duties under this Agreement. The term "business
expenses" shall not include any item not deductible in whole or in part by
Employer for federal income tax purposes. To obtain reimbursement, Employee
shall submit to Employer receipts, bills or sales slips for the expenses
incurred. Reimbursements shall be made by Employer monthly within 10 days of
presentation by Employee of evidence of the expenses incurred.
4. Term of Employment.
(a) Employment Term. The term of this Agreement shall
be for a period of five years commencing as of the date hereof and from year to
year thereafter, unless and until terminated by either party giving written
notice to the other not less than 60 days prior to the end of the then-current
term.
(b) Termination Under Certain Circumstances.
Notwithstanding anything to the contrary herein contained:
(i) Death. Employee's employment shall be
automatically terminated, without notice, effective upon the date of Employee's
death.
(ii) Disability. If Employee shall fail, for
a period of more than 90 consecutive days, or for 90 days within any 180 day
period, to perform any of Employee's duties under this Agreement as the result
of illness or other incapacity, Employer may, at its option and upon notice to
Employee, terminate Employee's employment affective on the date of that notice.
(iii) Unilateral Decision of Employer.
Employer may, at its option, upon notice to Employee, terminate Employee's
employment effective on the date of that notice.
(iv) Unilateral Decision by Employee.
Employee may, at his option and upon notice to Employer, terminate Employee's
employment effective on the date of that notice.
(v) Certain Acts. If Employee engages in an
act or acts involving a crime, moral turpitude, fraud or dishonesty, Employer
may, at its option and upon notice to Employee, terminate Employee's employment
effective on the date of that notice.
(vi) Change in Control. Employee may, at his
option and upon notice to Employer, terminate Employee's employment effective on
the date of the notice in the event of a "Change of Control" of Employer, as
defined below.
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(c) Result of Termination. In the event of the
termination of Employee's employment pursuant to Sections 4(b)(i) or (ii) above,
Employee's estate or Employee, as the case may be, shall be entitled to receive
an amount equal to Employee's fixed salary as provided in Section 3(a) above for
a period of one year after such termination. In the event of the termination of
Employee's employment pursuant to Section 4(b)(iii) or Section 4(b)(vi) above,
Employee shall continue to receive Employee's fixed compensation for the
remainder of the term of this Agreement. In the event of the termination of
Employee pursuant to Section 4(b)(iv) or (v) above, Employee shall receive no
further compensation under this Agreement.
(d) Change in Control. The term "Change in Control"
of Employer shall mean a change in control of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934 as in effect on the date
of this Agreement or, if Item 6(e) is no longer in effect, any regulations
issued by the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934 which serve similar purposes; provided that, without
limitation, such a Change in Control shall be deemed to have occurred if and
when (i) any person (as such term is used in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934) becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934) directly or indirectly of
equity securities of Employer representing 20 percent or more of the combined
voting power of Employer's then-outstanding equity securities, except that this
provision shall not apply to an acquisition which has been approved by at least
75 percent of the members of the Board of Directors who are not affiliates or
associates of such person and by at least 80 percent of the issued and
outstanding shares of Employer's Common Stock beneficially owned by
non-affiliates of such person; (ii) during the period of this Agreement,
individuals who, at the beginning of such period, constituted the Board of
Directors of Employer (the "Original Directors"), cease for any reason to
constitute at least a majority thereof unless the election or nomination for
election of each new director was approved (an "Approved Director") by the
unanimous vote of a Board of Directors constituted entirely of Existing
Directors and/or Approved Directors; (iii) a tender offer or exchange offer is
made whereby the effect of such offer is to take over and control Employer, and
such offer is consummated for the equity securities of Employer representing 20
percent or more of the combined voting power of Employer's then-outstanding
voting securities; (iv) Employer is merged, consolidated, or enters into a
reorganization transaction with another person and, as the result of such
merger, consolidation, or reorganization, less than 75 percent of the
outstanding equity securities of the surviving or resulting person shall then be
owned in the aggregate by the former stockholders of Employer; or (v) Employer
transfers substantially all of its assets to another person or entity which is
not a wholly owned subsidiary of Employer. Sales of Employer's Common Stock
beneficially owned or controlled by Employee shall not be considered in
determining whether a Change in Control has occurred.
5. Competition and Confidential Information.
(a) Interests to be Protected. The parties
acknowledge that during the term of Employee's employment with Employer,
Employee will perform essential services
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for Employer, its employees, and stockholders. Employee will be exposed to, have
access to, and be required to work with, a considerable amount of Confidential
Information (as defined below). The parties also expressly recognize and
acknowledge that the personnel of Employer have been trained by, and are
valuable to Employer and that if Employer must hire new personnel or retrain
existing personnel to fill vacancies it will incur substantial expense in
recruiting and training such personnel. The parties expressly recognize that
should Employee compete with Employer in any manner whatsoever, it could
seriously impair the goodwill and diminish the value of Employer's business. The
parties acknowledge that this covenant has an extended duration; however, they
agree that this covenant is reasonable and it is necessary for the protection of
Employer, its stockholders, and employees. For these and other reasons, and the
fact that there are many other employment opportunities available to Employee if
he should terminate his employment, the parties are in full and complete
agreement that the following restrictive covenants are fair and reasonable and
are freely, voluntarily, and knowingly entered into. Furthermore, each party was
given the opportunity to consult with independent legal counsel before entering
into this Agreement.
(b) Non-Competition. During the term of Employee's
employment with Employer and for the period ending 12 months after the
termination of Employee's employment with Employer, regardless of the reason
therefor, Employee shall not (whether directly or indirectly, as owner,
principal, agent, stockholder, director, officer, manager, employee, partner,
participant, or in any other capacity) engage or become financially interested
in any competitive business conducted within the Restricted Territory (as
defined below). As used herein, the term "competitive business" shall mean any
business engaged in the purchase, sale, management, ownership or operation of
apartment units or apartment communities and any other type of real estate owned
by Employer during Employee's employment hereunder and the term "Restricted
Territory" shall mean any state in which Employer owns, invests in, or manages
apartment units or apartment communities or other types of real estate during
Employee's employment hereunder. Notwithstanding the foregoing, this Section
5(b) shall not restrict Employee from owing not more than 5% of the outstanding
security of any class listed on a national securities exchange or the Nasdaq
Stock Market or require Employee to dispose of any interest in a competitive
business conducted within the Restricted Territory if the competitive business
was not a competitive business at the time Employee acquired his interest.
(c) Non-Solicitation of Employees. During the term of
Employee's employment and for a period of 12 months after the termination of
Employee's employment with Employee, regardless of the reason therefor, Employee
shall not directly or indirectly, for himself, or on behalf of, or in
conjunction with, any other person(s), company, partnership, corporation, or
governmental entity, seek to hire, and/or hire any of Employer's personnel or
employees for the purpose of having such employee engage in services that are
the same, similar or related to the services that such employee provided for
Employer.
(d) Confidential Information. Employee shall maintain
in strict secrecy all confidential or trade secret information relating to the
business of Employer (the "Confidential Information") obtained by Employee in
the course of Employee's employment, and Employee shall not, unless first
authorized in writing by Employer, disclose to, or use for
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Employee's benefit or for the benefit of any person, firm or entity at any time
either during or subsequent to the term of Employee's employment, any
Confidential Information, except as required in the performance of Employee's
duties on behalf of Employer. For purposes hereof, Confidential Information
shall include without limitation any materials, trade secrets, knowledge, or
information with respect to management, operational, or investment policies and
practices of Employer; any business methods or forms; any names or addresses of
customers or data on customers or suppliers; and any business policies or other
information relating to or dealing with the management, operational, or
investment policies or practices of Employer.
(e) Return of Books and Papers. Upon the termination
of Employee's employment with Employer for any reason, Employee shall deliver
promptly to Employer all files, lists, books, records, manuals, memoranda,
drawings, and specifications; all cost, pricing, and other financial data; all
other written or printed materials which are the property of Employer (and any
copies of them); and all other materials which may contain Confidential
Information relating to the business of Employer, which Employee may then have
in Employee's possession whether prepared by Employee or not.
(f) Disclosure of Information. Employee shall
disclose promptly to Employer, or its nominee, any and all ideas, designs,
processes and improvements of any kind relating to the business of Employer,
whether patentable or not, conceived or made by Employee, either alone or
jointly with others, during working hours or otherwise, during the entire period
of Employee's employment with Employer, or within six months thereafter.
(g) Assignment. Employee hereby assigns to Employer
or its nominee, the entire right, title and interest in and to all inventions,
discoveries and improvements, whether patentable or not, which Employee may
conceive or make during Employee's employment with Employer, or within six
months thereafter, and which relate to the business of Employer.
(h) Equitable Relief. In the event a violation of any
of the restrictions contained in this paragraph is established, Employer shall
be entitled to preliminary and permanent injunctive relief as well as damages
and an equitable accounting of all earnings, profits and other benefits arising
from such violation, which right shall be cumulative and in addition to any
other rights or remedies to which Employer may be entitled. In the event of a
violation of any provision of subsection (b), (c), (f) or (g) of this Section,
the period for which those provisions would remain in effect shall be extended
for a period of time equal to that period beginning when such violation
commenced and ending when the activities constituting such violation shall have
been finally terminated in good faith.
(i) Restrictions Separable. If the scope of any
provision of this Agreement (whether in this Section 5 or otherwise) is found by
a Court to be too broad to permit enforcement to its full extent, then such
provision shall be enforced to the maximum extent permitted by law. The parties
agree that the scope of any provision of this Agreement may be modified by a
judge in any proceeding to enforce this Agreement, so that such provision can be
enforced to the maximum extent permitted by law. Each and every restriction set
forth in this Section 5 is independent and severable from the others, and no
such restriction shall be rendered
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unenforceable by virtue of the fact that, for any reason, any other or others of
them may be unenforceable in whole or in part.
6. Miscellaneous.
(a) Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received (i) if personally
delivered, on the date of delivery, (ii) if mailed, three days after deposit in
the United States mail, registered or certified, return receipt requested,
postage prepaid and addressed as provided below, or (iii) if by a courier
delivery service providing overnight or "next-day" delivery, on the next
business day after deposit with such service addressed as follows:
(i) If to Employer:
000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attention: Secretary
(ii) If to Employee:
0000 XX 0000 Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Either party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice.
(b) Indulgences; Waivers. Neither any failure nor any
delay on the part of either party to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, remedy, power or privilege preclude any
other or further exercise of the same or of any other right, remedy, power or
privilege, nor shall any waiver of any right, remedy, power or privilege with
respect to any occurrence be construed as a waiver of such right, remedy, power
or privilege with respect to any other occurrence. No waiver shall be binding
unless executed in writing by the party making the waiver.
(c) Controlling Law. This Agreement and all questions
relating to its validity, interpretation, performance and enforcement, shall be
governed by and construed in accordance with the laws of the State of Arizona,
notwithstanding any Arizona or other conflict- of-interest provisions to the
contrary.
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(d) Binding Nature of Agreement. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns except that
no party may assign or transfer such party's rights or obligations under this
Agreement without the prior written consent of the other party.
(e) Execution in Counterpart. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original as against any party whose signature appears thereon, and all of which
shall together constitute one and the same instrument. This Agreement shall
become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of the parties reflected hereon as the
signatories.
(f) Provisions Separable. The provisions of this
Agreement are independent of and separable from each other, and no provision
shall be affected or rendered invalid or unenforceable by virtue of the fact
that for any reason any other or others of them may be invalid or unenforceable
in whole or in part.
(g) Entire Agreement. This Agreement contains the
entire understanding between the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements and conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance and/or usage of the trade inconsistent with any of the
terms hereof. This Agreement may not be modified or amended other than by an
agreement in writing.
(h) Paragraph Headings. The paragraph headings in
this Agreement are for convenience only; they form no part of this Agreement and
shall not affect its interpretation.
(i) Gender. Words used herein, regardless of the
number and gender specifically used, shall be deemed and construed to include
any other number, singular or plural, and any other gender, masculine, feminine
or neuter, as the context requires.
(j) Number of Days. In computing the number of days
for purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; provided, however, that if the final day of any time
period falls on a Saturday, Sunday or holiday, then the final day shall be
deemed to be the next day which is not a Saturday, Sunday or holiday.
7. Successors And Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto;
provided that because the obligations of Employee hereunder involve the
performance of personal services, such obligations shall not be delegated by
Employee. For purposes of this Agreement successors and assigns shall include,
but not be limited to, any individual, corporation, trust, partnership, or other
entity which acquires a majority of the stock or assets of Employer by sale,
merger,
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consolidation, liquidation, or other form of transfer. Employer will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of Employer
to expressly assume and agree to perform this Agreement in the same manner and
to the same extent that Employer would be required to perform it if no such
succession had taken place.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
ASR INVESTMENTS CORPORATION
By:
-----------------------------------
Name:
-----------------------------------
Its:
-----------------------------------
----------------------------------------
Xxx X. Xxxxxx
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