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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT, dated as of March 1, 1998 between XXXXXX REALTY
TRUST, INC., a Missouri corporation (the "Company"), and XXXXXX X. XXXXXXX
("Employee").
The Company desires to have the benefit of Employee's considerable
expertise and experience and desires to enter into an agreement providing for
his employment as an executive officer of the Company through February 28, 2003.
Employee is willing to be employed by the Company through February 28,
2003.
In consideration of the premises and the covenants set forth herein and
for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. Capacity, Term and Scope of Employment.
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(a) During the period from the date hereof through February 28,
2003, Employee shall be employed as chief financial officer and treasurer of
the Company, responsible for such matters as the Board of Directors of the
Company may request Employee to participate in for the benefit of the Company.
Employee shall report directly to and be responsible to the Board of Directors
of the Company and its chief executive officer.
(b) Through February 28, 2003, Employee shall devote such time
and attention to the affairs of the Company as Employee shall deem
necessary to fulfill his duties hereunder. It is expressly understood that
Employee may also be an employee, officer and member of the board of directors
of any other company or companies, whether in the real estate business or
otherwise.
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(c) If, following the termination of Employee's employment as an
employee, the Company discovers any irregularity in the books or records of
the Company's accounts and the Company anticipates making a claim against
Employee for such irregularity, Employee and his representative shall have
the right, in the presence of a representative of the Company to review the
relevant books, records and files of the Company in connection with the
irregularity.
2. Compensation and Benefits. As compensation hereunder, the Company
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shall pay, and Employee shall accept, during the period of his employment
hereunder:
(a) base compensation at a minimum rate of $8,333.33 per month,
commencing March 1, 1998, of which $2,083.33 per month shall be payable in
equal semimonthly installments and of which $6,250.00 per month shall be
payable on a deferred basis, without interest, at the end of the term
hereof (or earlier, as provided herein), but which shall vest in equal
semimonthly installments as earned;
(b) reimbursement for such travel expenses and accommodations as are
reasonable and necessarily incurred by him in connection with the performance
of his duties under this Agreement and in accordance with procedures and
policies in effect from time to time, for out-of-pocket expenses reasonably
incurred; and
(c) As an inducement essential to Employee entering into this
Agreement, options to purchase 25,000 shares of the Company's Common Stock
at the last reported closing bid price for such shares on or before February 27,
1998; such options shall contain such provisions as are set forth in Exhibit A
hereto.
3. Confidential Information and Materials. Employee agrees that during
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the term of this Agreement and thereafter he will not, without the prior written
consent of the Company, use or disclose to any persons, other than persons then
employed by, or acting as advisers or
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consultants to, the Company or any of its affiliates and members of the board
of directors thereof, any information (whether business, financial, technical
or otherwise), know-how, trade secrets, customer lists, or other documents
and materials relating to the Company or any of its affiliates (the
"Confidential Materials and Information") that are currently in his possession
or that may come into his possession subsequent to the date hereof; provided,
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however, that the foregoing shall not apply to Confidential Materials and
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Information which are or become part of the public domain other than by means
of a breach of this Agreement. Upon termination of employment with the Company
for any reason (including termination on February 28, 2003 pursuant to the
terms of this Agreement), Employee agrees to return to the Company all
tangible manifestations of trade secrets and customer lists and all copies
thereof. Employee further agrees that his obligations under this Section shall
survive his termination of employment with the Company and shall continue to
bind him for a period of five years following such termination.
4. Termination of Employment. Notwithstanding anything herein contained:
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(a) If Employee shall, at any time prior to February 28, 2003, fail
to perform his duties hereunder because of illness or other physical or mental
incapacity which shall continue for a period of more than 120 days, the Company
shall have the right to terminate Employee's employment as of a date to be
specified in a notice to Employee to that effect, whereupon Employee shall
continue to receive his salary through the last day of the month in which such
termination shall take effect, all deferred compensation which has vested
through such date shall be paid.
(b) If, at any time prior to February 28, 2003, Employee (i) shall be
adjudged civilly liable for any material breach of his duties hereunder or of
his fiduciary duties to the Company, (ii) shall be convicted of a felony
against a person or property or (iii) shall willfully
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fail to perform his duties hereunder or be in material breach hereof and such
failure or breach shall continue for 30 days after written notice thereof is
given to Employee by the Company, then the Company shall have the right to
terminate its employment of Employee and all of its obligations to Employee
hereunder immediately upon delivery to him of notice of such termination, but
in such event Employee shall forthwith be paid all deferred compensation which
has vested as of the date of such termination.
(c) In the event "Adjusted Funds From Operations" of the Company,
as defined in Exhibit B hereto, for the fiscal year ended December 31, 2000,
as determined in good faith by the Company and reviewed by the Company's
certified public accountants, is less than $1,998,710, then the Company
shall have the right to terminate its employment of Employee and all of
its obligations to Employee hereunder immediately upon delivery to him of
notice of such termination, but in such event Employee shall forthwith be paid
all deferred compensation which has vested as of the date of such termination.
(d) In the event that Employee dies prior to February 28, 2003, his
employment shall terminate immediately and automatically, all deferred
compensation which has vested shall be paid to his estate.
(e) In the event Employee's services hereunder are terminated by
the Company for any other reason or in the event the Company sells all or
substantially all of its assets or is otherwise liquidated, all compensation
payable hereunder after the date of such termination (including all deferred
compensation, whether vested or not) shall be immediately paid.
5. Representations of Employee. Employee represents and warrants to the
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Company that he is under no contractual or other restriction which is
inconsistent with his execution of this
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Agreement, the performance by him of his duties hereunder, or with the rights
of the Company (or of any of its affiliates) hereunder and that this
Agreement constitutes a legal, valid and binding obligation of Employee.
6. Representations of the Company. The Company represents and warrants
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that this Agreement has been duly authorized by its Board of Directors and
constitutes a legal, valid and binding obligation of the Company.
7. Arbitration; Severability.
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(a) Any dispute, claim or controversy between the parties with
respect to the performance or interpretation of this Agreement or Employee's
employment at Company which cannot be resolved between the parties shall be
finally resolved by a binding arbitration to be conducted by a single arbitrator
under the auspices of and in accordance with the Commercial Arbitration Rules
of the American Arbitration Association ("AAA") at a mutually acceptable
place in St. Louis County, Missouri. The arbitrator shall be bound by the
terms and conditions of this Agreement and shall have no power, in rendering the
award to alter or depart from any express provision of this Agreement or to
make a decision which is not supported by law and substantial evidence. Each
party shall bear the costs of its own attorneys and experts, and the parties
shall equally bear the costs, charges, and expenses, including the fees,
charges, and expenses of the arbitrator and the AAA. Notwithstanding the
parties' agreement to arbitrate, the parties reserve all of their respective
rights to seek provisional remedies before the courts which they would have
at law or equity, including temporary restraining orders, injunctions or other
similar relief.
(b) It is the desire and the intent of the parties that the terms
and conditions of this Agreement shall be enforced to the fullest extent
permissible. Accordingly, if any particular
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term or condition of this Agreement shall be adjudicated or become by operation
of law invalid or unenforceable, this Agreement shall be deemed amended to
delete therefrom such term or condition and the remainder of this Agreement
shall remain in full force and effect. A deletion resulting from any
adjudication shall apply only with respect to the operation of that term or
condition in the particular jurisdiction in which such adjudication is made.
8. Entire Agreement; Amendment. This Agreement sets forth the entire
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understanding of the parties with respect to the employment arrangement with
Employee and may be modified or amended only by a written instrument duly
executed by the Company and Employee.
9. Assignment. The rights of Employee under this Agreement shall not be
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transferable by assignment or otherwise, shall not be subject to commutation
or encumbrance and shall not be subject to the claims of creditors of Employee.
The Company may, however, assign its rights and delegate its duties hereunder
to a real estate investment trust which it may form; in such case, Employee
hereby accepts such delegate of duties and releases the Company from any
liability thereon.
10. Binding Effect. This Agreement shall be binding on and inure to the
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benefit of the heirs and personal representatives of Employee and shall also
be binding on and inure to the benefit of the Company and its successors and
assigns.
11. Notices. Any notice or other communication required or permitted to
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be given hereunder shall be in writing and shall be given by certified or
registered mail, overnight delivery service such as Federal Express, facsimile
transmission or personal delivery against receipt to the address or facsimile
copier number of the parties set forth below or to such other address or
facsimile copier number as the party shall have furnished in writing in
accordance with the
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provision of this Section:
If to the Company, to: Xxxxxx Realty Trust, Inc.
000 X. Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, XX 00000
Fax: (000) 000-0000
And to: Xxxxxxxxx X. Xxxxxxxx, Esq.
Xxxxx Xxxx LLP
000 X. Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, XX 00000
Fax: (000) 000-0000
If to Employee to: Xxxxxx X. Xxxxxxx
000 X. 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
And to: Xxxxxx X. Xxxx, Esq.
Xxxxxx Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
12. Counterparts. This Agreement may be executed in one or more
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counterpart copies, each of which shall be deemed an original, and shall
become effective when one or more counterparts shall have been signed by
each of the parties hereto and delivered to the other parties.
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13. Governing Law. This Agreement shall be governed and construed in
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accordance with the laws of the State of Missouri.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the date first above written.
THE COMPANY:
XXXXXX REALTY TRUST, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
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XXXXXXXX X. XXXXXX
President
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxx
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XXXXXX X. XXXXXXX
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