EXHIBIT 10.2
JDN DEVELOPMENT COMPANY, INC.
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of November 27, 2000 (the "Effective Date"),
is by and between XXXXX X. XXXXXXX (the "Employee") and JDN DEVELOPMENT COMPANY,
INC., a Delaware corporation (the "Company").
WITNESSETH:
WHEREAS, the Employee and JDN Realty Corporation entered into an
Employment Agreement dated as of December 1, 1996 (the "Previous Employment
Agreement") and desire to terminate the Previous Employment Agreement and the
rights, duties and obligations of the parties thereunder as of the Effective
Date of this Agreement, and desire that this Agreement supersede and replace in
all respects the Previous Employment Agreement;
WHEREAS, the Employee desires to be employed by the Company, and the
Company desires to employ the Employee, on the terms, covenants and conditions
hereinafter set forth in this Agreement.
NOW, THEREFORE, for the reasons set forth above, and in consideration
of the mutual promises and agreements herein set forth, the Company and the
Employee agree as follows:
1. Employment.
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Subject to the terms and conditions set forth in this Agreement, on
and as of the Effective Date the Company hereby employs and engages the Employee
to perform the duties and responsibilities delegated or assigned from time to
time by the board of directors of the Company (the "Board of Directors") or the
Chief Executive Officer, and the Employee will initially serve as Vice
President, Development for the Employer. The duties and responsibilities the
Employee is to perform hereunder shall be conducted from the Atlanta, Georgia
metropolitan area, where the principal offices of the Company are located. The
Employee may be required from time to time to perform his duties hereunder on an
occasional basis at such other locations as the Board of Directors shall
reasonably designate or as the interests or business opportunities of the
Company may reasonably require; provided, however, that without the Employee's
consent, the Employee shall not be required to relocate from the Atlanta,
Georgia metropolitan area. The Employee hereby accepts such employment and
agrees to serve the Company as an officer for the term of this Agreement.
2. Term of Employment.
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Except as otherwise provided herein, the term of this Agreement shall
be for one (1) year commencing on the Effective Date and ending on the first
anniversary of the Effective Date (the "Employment Term"). While the Employee
is employed hereunder, the Employment
Term shall automatically be extended for one (1) year upon the occurrence of an
anniversary of the Effective Date, unless either party has given notice of
intention to terminate at least ninety (90) days prior to such anniversary of
the Effective Date, or unless the Employee's employment has otherwise terminated
as hereinafter provided.
3. Devotion to Duties.
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The Employee agrees that during the period that he is employed
hereunder, he shall devote substantially all his business time and attention to
the business and affairs of the Company, shall use his best efforts to promote
the interests of the Company and shall not enter into any other business
affiliations or arrangements without the prior written consent of the Company.
Nothing in this Section 3, however, is intended to prevent the Employee from
engaging in additional activities in connection with personal investments and
community or professional affairs that are not inconsistent with the Employee's
duties and obligations under this Agreement, including without limitation
Section 10 hereof. If the Employee is elected as a director of the Employer or
as a director or officer of any of its affiliates, the Employee will fulfill the
Employee's duties as such director or officer without additional compensation.
4. Compensation of Employee.
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4.1. Base Salary. During the term of this Agreement, the Company
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shall pay to the Employee as compensation for the services to be performed by
the Employee a base salary of One Hundred Eighty-three Thousand Six Hundred
Ninety-one Dollars ($183,691.00) per year (the "Base Salary"). The Base Salary
shall be payable in periodic installments in accordance with the Company's
normal payroll practice and shall be subject to such withholdings and other
ordinary employee withholdings as may be required by law. Commencing on January
1, 2001 and on January 1 of each year thereafter, or as soon as practicable
thereafter, the Compensation Committee of the Board of Directors (the
"Compensation Committee"), or the Board of Directors if the Compensation
Committee is not then in existence, will review the Base Salary, and shall
authorize, in its sole discretion, an appropriate increase in the Base Salary.
4.2. Bonus. In addition to the compensation set forth elsewhere in
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this section 4, for each year or portion thereof during the term of this
Agreement and any extensions thereof, the Employee shall be entitled to receive
a bonus in an amount to be determined by the Compensation Committee, or the
Board of Directors if the Compensation Committee is not then in existence, in
its discretion, based upon its evaluation of the Employee's performance during
such year or portion thereof.
4.3. Benefits. The Employee shall be entitled to participate, during
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the period of actual employment, in all regular employee benefit and deferred
compensation plans established by the Company to the extent the Employee is
eligible under the terms of such plans, including, without limitation, any
savings and profit sharing plan, dental and medical plans, life insurance, and
personal catastrophe and disability insurance, such participation to be as
provided in said employee benefit plans. The Employee shall also be entitled
during the period of actual employment to such paid vacation as is provided in
the policy adopted by the Company. The Employee shall also be entitled during
the period of actual
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employment to a company car. At such time that the lease expires on the company
car, Employee shall receive a car allowance of $625 per month during the period
of actual employment. For purposes of this Agreement, the term "period of actual
employment" means the portion of the Employment Term during which the Employee
is employed, but not the portion following the termination of Employee's
employment.
4.4. Office. The Employee shall be provided office space and such
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other facilities and services as the Company deems necessary or appropriate for
the performance of the Employee's duties under this Agreement.
4.5. Reimbursement of Expenses. The Company shall provide for the
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payment or reimbursement of all reasonable and necessary expenses incurred by
the Employee in connection with the performance of his duties under this
Agreement in accordance with the Company's expense reimbursement policy, as such
policy may change from time to time.
5. Termination of Employment.
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5.1. Termination for Cause. "Termination For Cause", as hereinafter
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defined, may be effected by the Company at any time during the term of this
Agreement by written notification to the Employee. Upon Termination For Cause,
the Employee shall immediately be paid all accrued salary, bonus compensation to
the extent earned, vested deferred compensation (other than pension plan or
profit sharing plan benefits which will be paid in accordance with the
applicable plan), any benefits under any plans of the Company in which the
Employee is a participant to the full extent of the Employee's rights under such
plans, accrued vacation pay and any appropriate business expenses incurred by
the Employee in connection with his duties hereunder, all to the date of
termination, but the Employee shall not be paid any other compensation or
reimbursement of any kind, including without limitation, severance compensation.
"Termination For Cause" shall mean termination by the Company of the Employee's
employment by the Company by reason of the Employee's (a) material breach of
this Agreement, or (b) failure to adhere to any written policy of the Company
which failure is determined by the Company to have a material adverse effect on
the Company, or (c) appropriation (or attempted appropriation) of a material
business opportunity of the Company, including attempting to secure or securing
any personal profit or benefit in connection with any transaction entered into
on behalf of the Company, or (d) misappropriation (or attempted
misappropriation) of any of the Company's funds or property, or (e) the
conviction of, the indictment (or its procedural equivalent) for or the entry of
a guilty plea or a plea of no contest with respect to, a felony, the equivalent
thereof, or any other crime with respect to which imprisonment is a possible
punishment, or (f) the good faith determination of the Company's Chief Executive
Officer, consistent with Company policy, that the Employee has failed to
perform the Employee's duties to the Company in a satisfactory manner, provided
however, that prior to a termination for failure to perform satisfactorily, the
Employee must be given written notice of his failure to perform and given at
least thirty (30) days thereafter to improve his performance to a satisfactory
level.
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5.2. Termination Other Than for Cause. Notwithstanding any other
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provisions of this Agreement, the Company may effect a "Termination Other Than
For Cause", as hereinafter defined, at any time upon giving written notice to
the Employee of such termination. Upon any Termination Other Than for Cause,
the Employee shall immediately be paid all accrued salary, bonus compensation to
the extent earned ("earned bonus" shall be defined as the amount of bonus the
Employee would normally have earned in a full calendar year times the percentage
of the bonus year that has been completed. The amount of bonus the Employee
would normally have earned will be calculated as the greater of the average
bonus of the last two years or 50% of base salary), vested deferred compensation
(other than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of the
Company in which the Employee is a participant to the full extent of the
Employee's rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by the Employee in connection with his duties
hereunder, all to the date of termination, and all severance compensation
provided in subsection 6.2. "Termination Other Than for Cause" shall mean
termination by the Company of the Employee's employment with the Company other
than a termination pursuant to subsection 5.1, 5.3, 5.4, 5.5 or 5.6, or
termination by the Employee of the Employee's employment with the Company by
reason of (i) the Company's material breach of this Agreement, (ii) the
assignment of the Employee without his consent to a position, responsibilities
or duties of a materially lesser status or degree of responsibility than his
position, responsibilities or duties as of the Effective Date, (iii) the
relocation of the Company's principal executive office outside the metropolitan
Atlanta, Georgia area, without the Employee's consent, or (iv) the requirement
by the Company that the Employee be based anywhere other than the Company's
principal executive offices, without the Employee's consent.
5.3. Termination by Reason of Disability. If, during the term of
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this Agreement, the Employee, in the reasonable judgment of the Board of
Directors, has failed to perform his duties under this Agreement on account of
illness or physical or mental incapacity, and such illness or incapacity
continues for a period of more than 120 consecutive days, or 180 days during any
twelve-month period, the Company shall have the right to terminate the
Employee's employment hereunder by written notification to the Employee and
payment to the Employee of all accrued salary, bonus compensation to the extent
earned, vested deferred compensation (other than pension plan or profit sharing
plan benefits which will be paid in accordance with the applicable plans), any
benefits under any plans of the Company in which the Employee is a participant
to the full extent of the Employee's rights under such plans, accrued vacation
pay and any appropriate business expenses incurred by the Employee in connection
with his duties hereunder, all to the date of termination, but the Employee
shall not be paid any other compensation or reimbursement of any kind, including
without limitation, severance compensation.
5.4. Death. In the event of the Employee's death during the term of
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this Agreement, the Employee's employment shall be deemed to have terminated as
of the last day of the month during which his death occurs and the Company shall
pay to his estate or such beneficiaries as the Employee may from time to time
designate all accrued salary, bonus
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compensation to the extent earned, vested deferred compensation (other than
pension plan or profit sharing plan benefits which will be paid in accordance
with the applicable plan), any benefits under any plans of the Company in which
the Employee is a participant to the full extent of Employee's rights under such
plans, accrued vacation pay and any appropriate business expenses incurred by
the Employee in connection with his duties hereunder, all to the date of
termination, but the Employee's estate shall not be paid any other compensation
or reimbursement of any kind, including without limitation, severance
compensation.
5.5. Voluntary Termination. In the event of a "Voluntary
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Termination," as hereinafter defined, the Company shall immediately pay all
accrued salary, bonus compensation to the extent earned, vested deferred
compensation (other than pension plan or profit sharing plan benefits which will
be paid in accordance with the applicable plans), any benefits under any plans
of the Company in which the Employee is a participant to the full extent of the
Employee's rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by the Employee in connection with his duties
hereunder, all to the date of termination, but no other compensation or
reimbursement of any kind, including without limitation, severance compensation.
"Voluntary Termination" shall mean termination by the Employee of Employee's
employment other than (i) constructive termination as described in paragraphs
(i) through (iv) of subsection 5.2, (ii) termination by reason of the Employee's
disability as described in subsection 5.3, (iii) termination by reason of the
Employee's death as described in subsection 5.4, and (iv) Termination Upon a
Change in Control as described in subsection 5.6.
5.6. Termination Upon a Change in Control. In the event of a
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"Termination Upon a Change in Control," as hereinafter defined, the Employee
shall immediately be paid all accrued salary, bonus compensation to the extent
earned, vested deferred compensation (other than pension plan or profit sharing
plan benefits which will be paid in accordance with the applicable plans), any
benefits under any plans of the Company in which Employee is a participant to
the full extent of the Employee's rights under such plans, accrued vacation pay
and any appropriate business expenses incurred by the Employee in connection
with his duties hereunder, all to the date of termination, and all severance
compensation provided in subsection 6.1. Termination Upon Change of Control
shall mean a Termination Other Than For Cause by the Company within one hundred
eighty (180) days following or ninety (90) days prior to a change in control as
hereinafter defined or as termination by the Employee (other than under the
threat of Termination for Cause) during the period from the ninetieth (90th) day
to the one hundred eightieth (180th) day following a Change in Control. Change
in Control shall mean the date of which the Company first determines that any of
the following has occurred.
(a) any individual, entity or group (a "Person"), becomes the
beneficial owner of 33% or more of the combined voting power of the then
outstanding voting securities of JDN Realty Corporation ("Realty") entitled to
vote generally in the election of directors of Realty (the Outstanding Voting
Securities"); provided, however, that any acquisition directly from or by Realty
or any acquisition by a company pursuant to a transaction which complies with
subparagraphs (i), (ii) and (iii) in paragraph (b) below shall be excluded from
this paragraph (a);
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(b) consummation of a reorganization, merger or consolidation (a
"Business Combination") of Realty, unless, in each case, following such Business
Combination (i) all or substantially all of the Persons who were the beneficial
owners of the Company Outstanding Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more than a
majority of the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of the company resulting
from such Business Combination, (ii) no Person (excluding any company resulting
from such Business Combination) beneficially owns, directly or indirectly, 33%
or more of the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of the company resulting
from such Business Combination except to the extent such ownership existed prior
to the Business Combination, and (iii) at least a majority of the members of the
Board of Directors of the company resulting from the Business Combination are
Continuing Directors (as hereinafter defined) at the time of the execution of
the definitive agreement, or the action of the Board, providing for such
Business Combination;
(c) the date on which Continuing Directors (as hereinafter defined)
cease for any reason to constitute at least a majority of the Board of Directors
of the JDN Realty Corporation.
(d) any individual, entity or group (a "Person"), other than one or
more of the Company's shareholders on the Effective Date of this Agreement or
any entity that either one of them controls, becomes the beneficial owner of 50%
or more of the combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of directors of the
Company (the "Company Outstanding Voting Securities"); provided, however, that
any acquisition directly from or by the Company or any acquisition by any Person
from W. Xxxx Xxxxxxxx of his shares of the Company Outstanding Voting Securities
on or before April 30, 2001 which acquisition has been approved by the Company's
Board of Directors (or, in the absence of any members on the Company's Board of
Directors, by all of the Company's non-transferring voting security holders)
shall be excluded from this paragraph (a);
5.7. Notice of Termination. The Company or the Employee may effect a
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termination of the Employee's employment by the Company pursuant to the
provisions of this Section 5 upon giving thirty (30) days' written notice to the
other party of such termination.
6. Severance Compensation
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6.1. Termination Upon Change in Control. In the event the Employee's
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employment is terminated in a Termination Upon a Change in Control, the Employee
shall be paid the following as severance compensation:
(a) For one (1) year following such termination of employment,
an amount (payable on the dates specified in subsection 4.1 except as
otherwise provided herein) equal to the sum of (i) the Base Salary at
the rate payable at the time of such termination and (ii) the average
of the annual bonus earned by the Employee in the two (2) years
immediately preceding the date of termination.
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(b) In the event that the Employee is not otherwise entitled to
fully exercise all awards granted to him under the Company's Incentive
Stock Plan, and the Incentive Stock Plan does not otherwise provide
for acceleration of exerciseability upon the occurrence of the Change
in Control described herein, such awards shall become immediately
exercisable upon a Change in Control.
(c) The Employee shall continue to accrue retirement benefits and
shall continue to enjoy any benefits under any plans of the Company in
which the Employee is a participant to the full extent of the
Employee's rights under such plans, including any perquisites provided
under this Agreement, through the remainder of the Employment Term;
provided, however, that the benefits under any such plans of the
Company in which the Employee is a participant, including any such
perquisites, shall cease upon the Employee's obtaining other
employment. If necessary to provide such benefits to the Employee,
the Company shall, at its election, either: (i) amend its employee
benefit plans to provide the benefits described in this paragraph (c),
to the extent that such is permissible under the nondiscrimination
requirements and other provisions of the Internal Revenue Code of 1986
(the "Code") and the provisions of the Employee Retirement Income
Security Act of 1974, or (ii) provide separate benefit arrangements or
cash payments so that the Employee receives amounts equivalent
thereto, net of tax consequences.
6.2. Termination Other Than for Cause. In the event the Employee's
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employment is terminated in a Termination Other Than for Cause, the Employee
shall be paid as severance compensation his Base Salary, at the rate payable at
the time of such termination, for one (1) year from the date of termination.
Provided, however, that if the Employee obtains other employment during such
period, the Employee shall promptly give notice thereof to the Company and the
severance compensation payable to the Employee during such period will be
reduced by the amount of compensation that the Employee is receiving from such
other employment. Notwithstanding any provision in this subsection 6.2 to the
contrary, the Company may, in the Company's sole discretion, by delivery of a
notice to the Employee within thirty (30) days following a Termination Other
Than for Cause, elect to remit to the Employee a lump sum severance payment by
bank cashier's check equal to the present value of the flow of cash payments
that would otherwise be paid to the Employee pursuant to this subsection 6.2.
Such present value shall be determined as of the date of delivery of the notice
of election by the Company and shall be based on the prime rate, as reported by
XX Xxxxxx on the date of delivery of the election notice. If the Company elects
to remit a lump sum severance payment, the Company shall make such payment to
the Employee within thirty (30) days following the date on which the Company
notifies the Employee of its election. In the event that the Employee is not
otherwise entitled to fully exercise all awards granted to him under the
Company's Incentive Stock Plan, and the Incentive Stock Plan does not otherwise
provide for acceleration of exerciseability upon the occurrence of a Termination
Other Than for Cause described herein, such awards shall become immediately
exercisable upon a Termination Other Than for Cause.
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6.3. Termination Upon Any Other Event. In the event of a Voluntary
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Termination, Termination For Cause, termination by reason of the Employee's
disability pursuant to subsection 5.5 or termination by reason of the Employee's
death pursuant to subsection 5.6, the Employee or his estate shall not be paid
any severance compensation.
6.4. Parachute Payment Reduction. Notwithstanding any other
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provisions of this Agreement, any amounts payable under this Agreement
(including but not limited to severance payments) shall be limited to the
maximum amount that may be paid so that no such payment will, when combined with
all other amounts to be received by the Employee upon a change in control
(described in Section 280G(b)(2)(A) of the Code), constitute a "parachute
payment" (defined in Section 280G(b)(2) of the Code) and so that no "excess
parachute payments" (defined in Section 280G(b)(1) of the Code) made to the
Employee are taxable to the Employee pursuant to Section 4999 of the Code. The
parties intend that the Employee shall receive the maximum payments permissible
that are not subject to the taxes described in Sections 280G and 4999 of the
Code and shall interpret this provision in accordance with such intention. In
further accord with such intention, nothing herein shall be construed to limit
the Employee's right to receive payments that do not exceed reasonable
compensation for services or to receive payments that are otherwise not taken
into account in calculating "parachute payments" under Section 280G of the Code.
7. Obligations Contingent on Performance.
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The obligations of the Company under this Agreement, including its
obligation to pay the compensation provided for herein, shall be contingent upon
the Employee's performance of his obligations under this Agreement.
8. Confidentiality.
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The Employee agrees at all times during and after the Employment Term
to hold in strict confidence all information concerning any matters affecting or
relating to the business of the Company, including without limiting the
generality of the foregoing its manner of operation, plans, protocols,
processes, computer programs, tenant lists, client lists, marketing information
and analyses, or other data, without regard to whether all of the foregoing
matters will be deemed confidential or material. The Employee agrees that he
will not, directly or indirectly, use any such information for the benefit of
others than the Company or disclose or communicate any of such information in
any manner whatsoever other than to the directors, officers, employees, agents
and representatives of the Company who need to know such information, who shall
be informed by the Employee of the confidential nature of such information and
directed by the Employee to treat such information confidentially. Upon the
Company's request, the Employee shall return all information furnished to him
related to the business of the Company. The above limitations on use and
disclosure shall not apply to information which the Employee can demonstrate:
(a) was known to the Employee before receipt thereof from the Company; (b) is
learned by the Employee from a third party entitled to disclose it; or (c)
becomes known publicly
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other than through the Employee. The parties hereto stipulate that all such
information is material and confidential and gravely affects the effective and
successful conduct of the business of the Company and the Company's goodwill,
and that any breach of the terms of this section 8 shall be a material breach of
this Agreement. The terms of this section 8 shall remain in effect following the
termination of this Agreement.
9. Use of Proprietary Information.
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The Employee recognizes that the Company possesses a proprietary
interest in all of the information described in section 8 and has the exclusive
right and privilege to use, protect by copyright, patent or trademark,
manufacture or otherwise exploit the processes, ideas and concepts described
therein to the exclusion of the Employee, except as otherwise agreed between the
Company and the Employee in writing. The Employee expressly agrees that any
products, inventions, discoveries or improvements made by the Employee, his
agents or affiliates, during the term of this Agreement, based on or arising out
of the information described in section 8 shall be the property of and inure to
the exclusive benefit of the Company. The Employee further agrees that any and
all products, inventions, discoveries or improvements developed by the Employee
(whether or not able to be protected by copyright, patent or trademark) during
the course of his employment, or involving the use of the Company's time,
materials or other resources, shall be promptly disclosed to the Company and
shall become the exclusive property of the Company.
10. Non-Competition Agreement.
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10.1. Non-Competition. The Employee agrees that, during the period
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of actual employment, the Employee shall not, without the prior written consent
of the Company, directly or indirectly, own, manage, operate, control, be
connected with as an officer, employee, partner, consultant or otherwise, or
otherwise engage or participate in, except as an employee of the Company, or any
corporation directly or indirectly controlled by it, any corporation or other
business entity engaged in any activity competitive with the Company, including
the business of owning, developing, leasing, managing or disposing of shopping
center properties. Notwithstanding the foregoing, the ownership by the Employee
of less than 2% of any class of the outstanding capital stock of any corporation
conducting such a competitive business which is regularly traded on a national
securities exchange or in the over-the-counter market shall not be a violation
of the foregoing covenant.
10.2. Non-Solicitation. During the period of actual employment, and
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one (1) year thereafter, the Employee shall not, except on behalf of or with the
prior written consent of the Company, (a) contact or solicit, directly or
indirectly, any customer, client, tenant or account that JDN is currently
working with in a particular market; or (b) directly or indirectly, entice or
induce, or attempt to entice or induce, any employee of the Company to leave
such employ, or employ any such person in any business similar to or in
competition with that of the Company. The Employee hereby acknowledges and
agrees that the provisions set forth in this subsection 10.2 constitute a
reasonable restriction on his ability to compete with the Company.
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10.3. Saving Provision. The parties hereto agree that, in the event a
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court of competent jurisdiction shall determine that the geographical or
durational elements of this covenant are unenforceable, such determination shall
not render the entire covenant unenforceable. Rather, the excessive aspects of
the covenant shall be reduced to the threshold which is enforceable, and the
remaining aspects shall not be affected thereby.
10.4. Equitable Relief. The Employee acknowledges that the extent of
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damages to the Company from a breach of sections 8, 9 and 10 of this Agreement
would not be readily quantifiable or ascertainable, that monetary damages would
be inadequate to make the Company whole in case of such a breach, and that there
is not and would not be an adequate remedy at law for such a breach. Therefore,
the Employee specifically agrees that the Company is entitled to injunctive or
other equitable relief from a breach of sections 8, 9 and 10 of this Agreement,
and hereby waives and covenants not to assert against a prayer for such relief
that there exists an adequate remedy at law, in monetary damages or otherwise.
11. Indemnification.
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11.1. Right to Indemnification. The Company shall indemnify, and on
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request shall advance funds to, the Employee for expenses (including attorneys'
fees), judgments, penalties, fines and amounts paid in settlement if the
Employee becomes a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, investigative or otherwise, by reason of the fact that
the Employee (a) is or was an employee of the Company, or (b) is or was serving
at the request of the Company as a director, officer, partner, trustee, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, in the manner and to the fullest extent
permitted by applicable law; provided, however, that the Company shall not
indemnify the Employee (a) in any proceeding by or in the right of the Company
against such Employee wherein the Employee shall have been adjudged to be liable
to the Company; (b) in any proceeding charging improper personal benefit to the
Employee, whether or not involving action in the Employee's official capacity,
in which the Employee was adjudged to be liable on the basis that personal
benefit was improperly received; or (c) it is established that (i) the act or
omission of the Employee was material to the matter giving rise to the
proceeding and the act or omission was committed in bad faith or was the result
of active and deliberate dishonesty, (ii) the indemnitee actually received an
improper personal benefit in money, property or services, or (iii) in the case
of any criminal proceeding, the Employee had reasonable cause to believe the act
or omission was unlawful. If applicable law is hereafter amended, any such
amendment shall apply to this Agreement only to the extent mandated by law and
only as to the activities of the Employee subject to indemnification pursuant to
this subsection 11.1 which occur subsequent to the effective date of such
amendment.
11.2. Non-Exclusivity of Rights. The indemnification and advancement
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of expenses provided by, or granted pursuant to, this section 11 shall not be
deemed exclusive of any other rights to which the Employee may be entitled by
law, the Company's Articles of
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Incorporation or Bylaws, an agreement with the Company, or a resolution of the
Board of Directors or of the Company's shareholders. Any repeal or modification
of the provisions of this section 11 shall be prospective only and shall not
adversely affect any right or protection set forth herein in favor of the
Employee at the time of such repeal or modification.
11.3. Insurance. The Company may, to the fullest extent permitted by
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law, purchase and maintain insurance, at its expense, to protect itself and the
Employee against any liability asserted against the Employee and incurred by the
Employee in any such capacity, or arising out of the Employee's duties
hereunder, whether or not the Company would have the power to indemnify the
Employee against such liability under the provisions of this section 11, the
General Corporation Law of the State of Maryland or otherwise.
11.4. Saving Provision. If this section 11 or any portion thereof
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shall be invalidated on any ground by any court of competent jurisdiction, then
the Company shall nevertheless indemnify the Employee as to expenses (including
attorneys' fees), judgments, fines, penalties and amounts paid in settlement
with respect to any actual or threatened action, suit or proceeding, whether
civil, criminal, administrative, investigative or otherwise, to the fullest
extent permitted by any applicable portion of this section 11 which shall not
have been invalidated, by the General Corporation Law of the State of Maryland
or by any other applicable law.
12. Assignment. The Employee and the Company acknowledge that
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certain changes dictated by the Ticket to Work and Work Incentives Improvement
Act of 1999 (the "Act"), to be effective January 1, 2001, will trigger a
restructuring and/or change of ownership of the Company. It is the intent of
the parties to this Agreement that, despite any conversion of the Company into,
or combination of the Company or its business with, a taxable REIT subsidiary of
JDN Realty Corporation, the Employee will continue to be employed under the
terms of this Agreement. The Employee hereby agrees to an assignment of this
Agreement by the Company to a taxable REIT subsidiary of JDN Realty Corporation
solely for the purpose of effecting changes in the Company's business to comply
with the Act. Following or in anticipation of an assignment, without the
Employee's consent, however, the duties and responsibilities of the Employee
performed for the assignee shall not be materially increased, altered or
diminished in a manner inconsistent with the Employee's duties and
responsibilities hereunder for the Company, nor shall there be a reduction in
the Employee's title.
13. Entire Agreement. This Agreement contains the complete agreement
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concerning the employment arrangement between the parties and shall, as of the
Effective Date, supersede all other agreements or arrangements between the
parties and between the Employee and JDN Realty Corporation, including the
Previous Employment Agreement, with regard to the subject matter hereof.
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14. Binding Agreement. The obligations of the Company under this
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Agreement shall not be terminated by reason of any liquidation, dissolution,
bankruptcy, cessation of business or similar event relating to the Company.
This Agreement shall not be terminated by reason of any merger, consolidation or
reorganization of the Company, but shall be binding upon and inure to the
benefit of the surviving or resulting entity.
15. Modification. No waiver or modification of this Agreement or of
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any covenant, condition, or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith and no evidence
of any waiver or modification shall be offered or received in evidence of any
proceeding, arbitration, or litigation between the parties hereto arising out of
or affecting this Agreement, or the rights or obligations of the parties
thereunder, unless such waiver or modification is in writing, duly executed as
aforesaid.
16. Severability. All agreements and covenants contained herein are
------------
severable, and in the event any of them shall be held to be invalid or
unenforceable by any court of competent jurisdiction, this Agreement shall be
interpreted as if such invalid agreements or covenants were not contained
herein.
17. Manner of Giving Notice. All notices, requests and demands to or
-----------------------
upon the respective parties hereto shall be sent by hand, certified mail,
overnight air courier service, or telecopier (if within a reasonable time a
permanent copy is given by any of the other methods described above), in each
case with all applicable charges paid or otherwise provided for, addressed as
follows, or to such other address as may hereafter be designated in writing by
the respective parties hereto:
To Company:
----------
JDN Development Company, Inc.
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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To Employee:
-----------
Xxxxx X. Xxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
Such notices, requests and demands shall be deemed to have been given or made on
the date of delivery if delivered by hand or by telecopy and on the next
following date if sent by mail or by air courier service.
18. Remedies.
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In the event of a breach of this Agreement, the non-breaching party
shall be entitled to such legal and equitable relief as may be provided by law,
and shall further be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred in enforcing the non-breaching party's
rights hereunder.
19. Headings.
--------
The headings have been inserted for convenience only and shall not be
deemed to limit or otherwise affect any of the provisions of this Agreement.
20. Choice of Law.
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It is the intention of the parties hereto that this Agreement and the
performance hereunder be construed in accordance with, under and pursuant to the
laws of the State of Maryland without regard to the jurisdiction in which any
action or special proceeding may be instituted.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first stated above.
JDN Development Company, Inc.
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Xxxxx Xxxxxx, Executive Vice President
/s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
13
JDN Realty Corporation joins in the foregoing Employment Agreement to
acknowledge and agree to the first recital and paragraph 13 relating to the
termination of the Previous Employment Agreement.
JDN Realty Corporation
By: /s/ Xxxxx Xxxxxx
-----------------------
Xxxxx Xxxxxx
Chief Executive Officer
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