EMPLOYMENT AGREEMENT
Exhibit 10.3
This Employment Agreement (“Agreement”) is made as of October 24, 2014 between Xxxxxxx Real Estate Investment Trust, Inc. (“Employer”), and Xxx X. Xxxxxxx (“Employee”).
NOW, THEREFORE, it is agreed as follows:
1.1 This Agreement shall automatically renew for successive one-year periods (“Renewal Term”), under and subject to the terms herein, unless either party gives sixty days written notice prior to the expiration of any Renewal Term on Initial Term (“Notice of Non-Renewal”).
1.2 Employer, in its sole discretion, shall have the option but not the obligation of relieving Employee of actually performing any services following the giving of a Notice of Non-Renewal. Employee shall nonetheless be paid for twelve months from the date of notice provided he does not violate any provision of this Agreement while receiving such compensation.
3.1 Employee shall receive reimbursements for reasonable and necessary business expenses, including but not limited to, cell phone, mileage, toll and travel expenses, including costs incurred to attend conferences and events to enhance Employee’s skills and/or visibility in Employer’s industry, incurred by Employee in performance of his duties hereunder.
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7. TERMINATION WITHOUT CAUSE; SEVERANCE PAY:
7.1 At any point during the Initial Term or during any Renewal Term hereof, Employer may terminate Employee’s employment immediately and without cause. However, if Employer terminates employee’s employment pursuant to this paragraph 7.1, Employer shall pay to Employee his regular base salary payable in periodic installments on the same schedule as other executive employees of Employer for twelve months following the date on which employment is terminated (“Severance Pay”).
7.2 Employee agrees that while receiving Severance Pay, in the event he violates any provision of this Agreement, he will forfeit all Severance Pay from the first date of payment and shall be obligated to return all such pay within ten days of demand for return of such pay by Employer.
8.1 The Employee’s employment may be terminated at any time by Employer for “Cause.” As used in this Agreement, the term Cause means (i) disloyalty or dishonesty towards Employer; (ii) gross or intentional neglect in performance of duties; (iii) incompetence or willful misconduct in performance of duties; (iv) substance abuse affecting Employee’s performance of duties; (v) discrimination against or harassment of other employees; (vi) willful violation of any law, rule, or regulation (other than minor traffic violations) related to Employee’s duties; (vii) material breach of any provision of this Agreement; or (viii) any other act or omission which xxxxx or may reasonably be expected to harm the reputation and/or business interests of Employer. If the employment is so terminated, Employee will be entitled to receive any base salary earned and employee benefits accrued as of the date of such termination, but Employer will have no further obligation to Employee hereunder from and after such date.
8.2 Any vote concerning Employee’s termination shall be taken at a regular meeting or specially called meeting of the Board of Directors. Termination shall require a majority vote of those directors in attendance and voting at the meeting.
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9.1 Employee may resign from the employment of Employer at any time upon 60 days’ prior written notice. Upon such resignation, Employee shall have no rights to any further compensation or benefits after the 60-day notice period has expired. Employer reserves the option but not the obligation to relieve Employee from performance of work during all of or any portion of this period, but absent mutual agreement or subsequent breach hereof, Employer shall be obligated to pay Employee the Employee’s regular base salary for the entire 60-day notice period.
9.2 Employee may resign from Employer without giving 60 days’ notice but still be entitled 60 days’ pay if such resignation is a Resignation with Good Reason. A Resignation with Good Reason may occur if Employee is not compensated as provided herein for a period exceeding four weeks or is otherwise materially and adversely affected by Employer’s breach hereof as to the terms and conditions of his employment. Provided further, that a Resignation with Good Reason along with the reasons on which it is based shall be given to Employer, which shall then have ten calendar days to address and cure such reasons.
10.1 Employee agrees to hold and safeguard any information about Employer and/or its shareholders and investors gained by Employee during the course of Employee’s employment. Employee shall not, without the prior written consent of Employer, disclose or make available to anyone for use outside Employer’s organization at any time, either during his employment or
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subsequent to any termination of his employment, however such termination is effected, whether by Employee or Employer, with or without cause or Good Reason, or expiration or nonrenewal of this Agreement, any information about Employer or its shareholders or investors, whether or not such information was developed by Employee, except as required in the performance of Employee’s duties for Employer or required by law.
10.2 Employee understands and agrees that any information about Employer is the property of Employer and is essential to the protection of Employer’s goodwill and to the maintenance of Employer’s competitive position and accordingly should be kept secret. Such information shall include, but not be limited to, information containing Employer’s business plans, investment strategies, investors, and prospective investors, key elements of specific properties, computer programs, system documentation, manuals, ideas, or any other records or information belonging to Employer or relating to Employer’s business.
10.3 Notwithstanding anything in paragraph 10.1 or paragraph 10.2 to the contrary, Employer agrees that the obligations of Employee set forth in paragraphs 10.1 and 10.2 shall not apply to any information which (i) becomes known generally to the public through no fault of the Employee; (ii) is required by applicable law, legal process or any order or mandate of a court or other governmental authority to be disclosed; or (iii) is reasonably believed by Employee, based upon the advice of legal counsel, to be required to be disclosed in defense of a lawsuit or other legal or administrative action brought against Employee; provided, that in the case of clauses (ii) or (iii) Employee shall give Employer reasonable advance written notice of the information intended to be disclosed and the reasons and circumstances surrounding such disclosure in order to permit Employer to seek a protective order or other appropriate request for confidential treatment of the applicable information.
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11.1 Employee agrees that upon a termination for Cause or a resignation but not a Resignation for Good Reason, for a period of twelve months following the last day of Employee’s employment, Employee will not compete with Employer by engaging, in a competitive capacity, in any activity competitive with Employer, within a 30-mile radius of any of Employer’s offices at which Employee worked within the one-year period preceding the last day of his employment.
11.2 Employee agrees that competition shall include engaging, in a competitive capacity, in competitive activity, either as an individual, as a partner, as a joint venturer with any other person or entity, or as an employee, agent, representative, or contractor of any other person or entity, or otherwise being associated in a competitive capacity with any entity or person who or which competes with Employer.
11.3 If any provision of this paragraph 11 relating to the time period or scope of the restrictive covenants shall be declared by a court of competent jurisdiction to exceed the maximum time period or scope, as applicable, that such court deems reasonable and enforceable, said time period or scope shall be deemed to be, and thereafter shall become, the maximum time period or greatest scope that such court deems reasonable and enforceable and this Agreement shall automatically be considered to have been amended and revised to reflect such determination.
11.4 Employer and Employee have examined this Covenant Not to Compete and agree that the restraint imposed upon Employee is reasonable in light of the legitimate interests of Employer and it is not unduly harsh upon Employee’s ability to earn a livelihood.
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12. COVENANT NOT TO SOLICIT OR BE EMPLOYED BY CUSTOMERS: In addition to the covenant not to compete set forth in paragraph 11 Employee further covenants and agrees as follows:
12.1 That upon a termination for Cause or a resignation but not a Resignation with Good Reason, for a period of twelve months following the last day of Employee’s employment, Employee will not, compete with Employer by soliciting or accepting competing business from or providing competing services to:
12.1.1 Any person or entity who or which was a customer or investor of Employer at any time within the twelve-month period prior to Employee’s last day of employment, from whom or which Employee solicited or accepted business on behalf of Employer or to whom Employee provided services during Employee’s employment with Employer; or
12.1.2 Any person or entity who or which was a customer or investor of Employer at any time within the twelve-month period prior to Employee’s last day of employment about whom or which Employee acquired proprietary and/or confidential information while employed by Employer; or
12.1.3 Any person or entity from whom or which Employee had solicited competing business during the six-month period preceding the last day of Employee’s employment, even though such solicitation had not yet been acted upon; or
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12.2 That for a period of twelve months following the last day of Employee’s employment, Employee will not become employed in a capacity competitive to Employer by any person or entity who or which was a customer of Employer at any time within the twelve-month period prior to Employee’s last day of employment and to whom or which Employee provided services during his employment with Employer, for purposes of providing the same or similar services to such person or entity as Employee provided while employed by Employer.
12.2.1 Employee agrees that competition shall include engaging, in a competitive capacity, in competitive activity as defined above, either as an individual, as a partner, as a joint venturer with any other person or entity, or as an employee, agent, representative or contractor of any other person or entity, or otherwise being associated in a competitive capacity with any person or entity who or which competes with Employer.
12.2.2 If any provision of this paragraph 12 relating to the time period or scope of the restrictive covenants shall be declared by a court of competent jurisdiction to exceed the maximum time period or scope, as applicable, that such court deems reasonable and enforceable, said time period or scope shall be deemed to be, and thereafter shall become, the maximum time period or greatest scope that such court deems reasonable and enforceable and this Agreement shall automatically be considered to have been amended and revised to reflect such determination.
12.2.3 Employer and Employee have examined in detail this restrictive covenant and agree that the restraint imposed upon Employee is reasonable in light of the legitimate interests of Employer, and it is not unduly harsh upon Employee’s ability to earn a livelihood.
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13. NON-SOLICITATION OF EMPLOYEES: Employee agrees that during his employment with Employer and for a period of eighteen months following the last day of Employee’s employment, Employee shall not, directly, or indirectly through another, solicit or induce, or attempt to solicit or induce, any employee of Employer to leave Employer to go to work for, or to consult or contract work with a competitor of Employer, or recommend to a competitor of Employer the hiring of any individual employed by Employer on Employee’s last day of employment or at any time during the six-month period immediately prior thereto.
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16.1 Employer and Employee agree that irreparable injury will result to Employer in the event Employee violates any restrictive covenant or affirmative obligation contained in paragraphs 10-13 of this Agreement, and Employee acknowledges that the remedies at law for any breach by Employee of such provisions will be inadequate and that Employer shall be entitled to injunctive relief against Employee, in addition to any other remedy that is available, at law or in equity.
16.2 Employee agrees that unless this Agreement is terminated by Employer without cause or by Employee as a Resignation with Good Reason, the non-competition, non-solicitation of or hiring by customers, non-disclosure, and non-solicitation of employees obligations contained herein shall survive the end of the employment created herein and shall be extended by the length of time which Employee shall have been in breach of any of said provisions. Accordingly, Employee recognizes that the time periods included in the restrictive covenants contained herein shall begin on the date a court of competent jurisdiction enters an order enjoining Employee from violating such provisions unless good cause can be shown as to why the periods described should not begin at that time.
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20. EQUITABLE RELIEF: JURISDICTION AND VENUE: Employee hereby irrevocably submits to the jurisdiction and venue of the Circuit Court of the City of Norfolk, Virginia, in any action or proceeding brought by Employer arising out of, or relating to, the restrictive covenants in paragraphs 10-13 of this Agreement. Employee hereby irrevocably agrees that any such action or proceeding shall, at Employer’s option, be heard and determined in such Court. Employee agrees that a final order or judgment in any such action or proceeding shall, to the extent permitted by applicable law, be conclusive and may be enforced in other jurisdictions by suit on the order or judgment, or in any other manner provided by applicable law related to the enforcement of judgments.
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23. LAW GOVERNING AGREEMENT: This Agreement will be governed and construed in accordance with the laws of the Commonwealth of Virginia.
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XXX X. XXXXXXX | XXXXXXX REAL ESTATE INVESTMENT TRUST, INC. | |||||
/s/ Xxx X. Xxxxxxx |
By: | /s/ Xxx X. Xxxxxxx | ||||
Signature | Xxx X. Xxxxxxx | |||||
Xxx X. Xxxxxxx |
Its: | Chairman & Chief Executive Officer | ||||
Printed Name | ||||||
Date: October 24, 2014 | Date: | October 24, 2014 |
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