EXHIBIT 10.19
AMENDED AND RESTATED
SEVERANCE AGREEMENT
THIS AGREEMENT is entered into as of August 21,2001 (the "Effective
Date"), by and between XXXXXX X. XXXXXX (the "Employee") and THE ST. XXX
COMPANY, a Florida corporation (the "Company").
1. TERM OF AGREEMENT
This Agreement shall become effective on the Effective Date and shall
continue in effect until the Employee's employment with the Company terminates
and the Company's and the Employee's obligations provided for hereunder are
satisfied (the "Term of this Agreement").
2. DEFINITION OF CHANGE IN CONTROL.
For all purposes under this Agreement, "Change in Control" means the
occurrence of any of the following events after the date of this Agreement:
a) The consummation of a merger, share exchange or consolidation of the
Company with or into another entity or any other corporate reorganization (a
"Business Combination"), in each case unless, following such Business
Combination, all or substantially all of the individuals and entities who were
the owners of the Company's outstanding voting stock immediately prior to such
Business Combination own, directly or indirectly, and in substantially the same
proportions, 50% or more of the continuing or surviving entity's voting stock
outstanding immediately after such Business Combination;
b) The sale, transfer, exchange or other disposition of all or
substantially all of the Company's assets;
c) A change in the composition of the Board of Directors of the Company
(the "Board"), as a result of which fewer than two-thirds of the incumbent
directors are directors who either (i) had been directors of the Company on the
date 24 months prior to the date of the event that may constitute a Change in
Control (the "original directors") or (ii) were elected, or nominated for
election, to the Board with the affirmative votes of at least a majority of the
aggregate of the original directors who were still in office at the time of the
election or nomination and the directors whose election or nomination was
previously so approved;
d) The liquidation or dissolution of the Company; or
e) Any transaction as a result of which any person is the "beneficial
owner" (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "1934 Act")), directly or indirectly, of securities of the Company
representing 25% or
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more of the total voting power represented by the Company's then outstanding
voting securities. For purposes of this Paragraph (e), the term "person" shall
have the same meaning as when used in sections 13(d) and 14(d) of such Act but
shall exclude (i) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a parent or subsidiary of the Company,
(ii) a corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of the common
stock of the Company, (iii) the Xxxxxx X. xxXxxx Testamentary Trust and (iv) the
Nemours Foundation.
A transaction shall not constitute a Change in Control if its sole purpose
is to change the state of the Company's incorporation or to create a holding
company that will be owned in substantially the same proportions by the persons
who held the Company's securities immediately before such transaction.
Furthermore, the Company's purchase of Company stock from the Xxxxxx X. xxXxxx
Testamentary Trust shall in no event be deemed to result in a Change in Control.
3. DEFINITION OF GOOD REASON.
For all purposes under this Agreement, "Good Reason" means
a) The Employee has experienced a demotion in title with the Company or
has experienced a substantial and material reduction in duties or
responsibilities with the Company; provided that, the Employee occupying the
same position with a company that is not a publicly-held company subject to the
1934 Act shall constitute a material reduction in responsibilities unless the
reason the Company is no longer a publicly-held company subject to the 1934 Act
is because of a management and/or employee buyout or other similar transaction
whereby, after the completion of such transaction, the Company's management,
Company employee benefit plans and/or employees beneficially own(s) (as that
term is defined in Rule 13d-3 under the 1934 Act), directly or indirectly,
securities of the Company representing 50% or more of the total voting power
represented by the Company's then outstanding voting securities;
b) The Employee has incurred a reduction in his total compensation as an
employee of the Company (consisting of annual base salary and target bonus
potential);
c) The Employee has been notified that his principal place of work as an
employee of the Company will be moved to a location that is more than 30 miles
from its current location;
d) Commission by the Company, or a successor thereto, of a material breach
of any of the provisions of this Agreement or of the Employee's employment
agreement; or
e) A successor to the Company fails to comply with Section 17(a).
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A termination of employment by the Employee for one of the reasons set
forth above shall not be deemed a termination for Good Reason unless, within the
six month period immediately following the occurrence of such Good Reason event,
the Employee has given written notice to the Company specifying the event or
events relied upon for such termination and the Company has not remedied such
event or events within sixty days of the receipt of such notice.
The Company and the Employee, upon mutual written agreement, may waive any
of the foregoing provisions with respect to an event that otherwise would
constitute Good Reason.
4. DEFINITION OF CAUSE.
For purposes of this Agreement, "Cause" means gross negligence,
misconduct, nonfeasance, a material breach of this Agreement as determined by
the Court of Competent Jurisdiction in the state of Florida, conviction
following final disposition of any available appeal of a felony, or pleading
guilty or no contest to a felony.
5. DEFINITION OF DISABILITY.
For purposes of this Agreement the Employee shall be deemed to have
experienced a "Disability" if the Employee's disability constitutes long-term
disability under the Company's long-term disability plan then in effect.
6. DEFINITION OF CONTINUATION PERIOD.
The term "Continuation Period" shall mean the period commencing on the
date when the termination of the Employee's employment pursuant to Section 8 is
effective and ending on the earlier of:
a) The date 36 months after the date when the employment termination was
effective; or
b) The date of the Employee's death.
Notwithstanding the foregoing, for purposes of Section 10, "Coverage
Period" shall mean the period commencing on the date when the termination of the
Employee's employment pursuant to Section 8 is effective and ending 36 months
later.
7. TERMINATION OF EMPLOYMENT
The Company may terminate the Employee's employment at any time and for
any reason, with or without Cause, and the Employee may terminate his employment
at any time and for any reason, with or without Good Reason; provided, however,
the Company or the Employee, as the case may be, shall give at least 60 days'
written notice prior to
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the effective date of any termination of employment and the Company and the
Employee shall comply with the applicable provisions of this Agreement and the
Employee's employment agreement.
8. QUALIFYING TERMINATION OF EMPLOYMENT.
For purposes of this Agreement, the term "Qualifying Termination of
Employment" shall mean a termination of the Employee's employment under any of
the following circumstances:
a) The Employee terminates his employment for any reason during the 6
month period immediately following the first anniversary of a Change in Control;
b) The Employee terminates his employment for Good Reason (as that term is
defined in Section 3 hereof); or
c) The Company terminates the Employee's employment for any reason other
than Cause (as that term is defined in Section 4 hereof), death or Disability
(as that term is defined in Section 5 hereof).
The determination of whether the Employee's employment has terminated
shall be made without regard to whether the Employee continues to provide
services to the Company as a member of its Board or otherwise in the capacity of
an independent contractor. A transfer of the Employee's employment from the
Company to a successor of the Company shall not be considered a termination of
employment if such successor complies with the requirements of Section 17(a).
9. AMOUNT OF SEVERANCE PAY.
In the event of a Qualifying Termination of employment (as that term is
defined in Section 8 hereof), within thirty business days after the occurrence
of such Qualifying Termination of Employment, the Company or its successor shall
pay to the Employee a lump sum equal to the product of three times the sum of:
a) The Employee's annual base salary at the greater of (i) the annual rate
in effect on the date when the termination of the Employee's employment with the
Company is effective or (ii) the annual rate in effect on the date of the Change
in Control; plus
b) The greater of (i) the Employee's annual bonus for the most recent year
completed prior to the date when the termination of the Employee's employment
with the Company is effective or (ii) an amount equal to 100% of the Employee's
annual base salary, as determined under Section 9(a).
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For purposes of determining the Employee's annual base salary and target
annual bonus under Sections 9(a) and (b) above, any reduction in annual base
salary or target annual bonus that would constitute Good Reason under this
Agreement shall be deemed not to have occurred.
10. SUPPLEMENTAL PENSION BENEFIT AND RETIREE MEDICAL BENEFITS
a) In the event of a Qualifying Termination of Employment (as that term is
defined in Section 8 hereof), in lieu of accruing pension benefits under the
Company's Pension Plan, the Company's 401(k) Plan (the "401(k) Plan"), the
Company's Deferred Capital Accumulation Plan (the "DCAP"), the Company's
Supplemental Retirement Plan (the "SERP"), and any other funded or unfunded
pension plans now or hereafter maintained by the Company (collectively, the
"Pension Plans") during the Continuation Period, the Employee shall be entitled
to receive an unfunded supplemental pension benefit under this Agreement (the
"Supplemental Benefit"). The Supplemental Benefit shall be calculated under
Subsection (b) below and shall be paid in a lump sum within thirty business days
after the termination of the Employee's employment under Section 8.
b) The Supplemental Benefit shall be an amount equal to:
(i) The amount payable to the Employee as a single lump sum amount
under the Pension Plans had the Employee (A) continued to be employed as an
employee of the Company during the Continuation Period, (B) received
compensation equal to the amount described in Section 9(a) during the
Continuation Period, (C) continued to receive matching contributions under the
401(k) Plan and DCAP through the Continuation Period at the same rate as the
Employee was receiving at the time of the Employee's termination of employment,
and (D) been 100% vested in each of the Pension Plans; minus
(ii) The amount of the single lump sum amount actually payable to
the Employee under the Pension Plans, whether or not the Employee elects to
receive his benefits under the Pension Plans in the form of a single lump sum
amount.
For purposes of determining the lump sum amount payable under this Section
10, (a) the Employee's account under the Pension Plan and the SERP shall each be
credited with interest at the interest rate in effect under such plan at the
date of the Employee's Qualifying Termination of Employment, and, (b) the
Employee's account under the 401(k) Plan and the DCAP shall each be credited
with interest at the interest rate in effect under the DCAP at the date of the
Employee's Qua1ifying Termination of Employment.
Except as otherwise provided in this paragraph, if, after considering the
additional years of service credited to the Employee pursuant to this Section 10
(and assuming the Employee's age had increased commensurate therewith), the
Employee would have been entitled to retiree medical benefits, the Employee
shall be entitled to receive such retiree medical benefits as if entitled
thereto to the same extent and at the same after-tax cost to the Employee as is
provided to other eligible senior executives of the Company. Any
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retiree medical benefits provided pursuant to the preceding sentence shall begin
upon termination of the Employee's employment. Notwithstanding the foregoing, if
the provision to the Executive of the retiree medical benefits described in this
paragraph would either (a) violate the terms of the Company's retiree medical
plans or (b) violate any of the nondiscrimination requirements contained in the
Internal Revenue Code of 1986, as amended, then the Company, in its sole
discretion, may elect to pay the Executive, in lieu of provision of the
additional retiree medical benefits provided because of this paragraph, a lump
sum cash payment equal (after payment of all applicable taxes) to the present
value of the total cost to the Company of providing such benefits.
11. EQUITY-BASED COMPENSATION, BONUS, GROUP INSURANCE AND OUTPLACEMENT
SERVICES.
a) Equity-Based Compensation. If Employee terminates his employment for
Good Reason, or the Company terminates the Employee's employment for any reason
other than Cause, all stock options granted to the Employee shall immediately
vest in full, and all restrictions on all shares of restricted stock granted to
Employee shall immediately lapse.
If there is a Change in Control, all stock options granted to the Employee
which have already vested at the time of the Change in Control shall remain
vested, those stock options granted to the Employee which are scheduled to vest
within one year of the date of the Change in Control shall vest in accordance
with their existing vesting schedule, and all other stock options granted to the
Employee shall vest on the first anniversary of the date of the Change in
Control.
If the Company and the other party to the transaction constituting a
Change in Control agree that the transaction is to be treated as a "pooling of
interests" for financial reporting purposes, and if the transaction, in fact, is
so treated, then the acceleration of exercisability will not occur to the extent
that the surviving entity's independent public accountants determine in good
faith that the acceleration would preclude the use of "pooling of interests"
accounting. If applicable law or the terms of applicable plans or award
agreements prohibit the Company from acce1erating the lapsing of restrictions on
restricted stock or the vesting and exercisability of stock options or other
equity-based awards as provided above, the Company shall pay to the Employee the
following: (xx) on the date of the forfeiture of any restricted stock that
otherwise would have vested pursuant to this Section 11(a), a cash payment equal
to the market value of a number of shares of common stock of the Company (absent
restrictions) equal to the number of shares of restricted stock forfeited, (yy)
on the date of the forfeiture of any such stock options that otherwise would
have vested pursuant to this Section 11(a), a cash payment equal to the
difference between the market value of the shares of stock subject to such stock
options and the exercise price of such stock options, and (zz) on the date of
the forfeiture of any such other equity-based awards that otherwise would have
vested
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pursuant to this Section 11(a), a cash payment equal to the value of such
forfeited equity-based awards, as determined by the Board in good faith.
b) Annual Incentive. In the event of a Qualifying Termination of
Employment (as that term is defined in Section 8 hereof), the Company shall pay
the Employee an annual incentive for the year in which such termination occurs.
Such annual incentive shall not be less than the greater of (i) the Employee's
annual incentive for the most recent year completed prior to the date when the
termination of the Employee's employment with the Company is effective or (ii)
the amount of the Employee's target annual incentive potential then in effect,
in either case prorated to reflect the portion of such year during which
Employee was employed by the Company.
c) Insurance. In the event of a Qualifying Termination of Employment (as
that term is defined in Section 8 hereof), during the Continuation Period the
Employee (and, where applicable, the Employee's dependents) shall be entitled to
health and welfare benefits under the Company's welfare benefit plans (as that
term is defined in Section 3(1) of the Employee Retirement Income Security Act
of 1974, as amended) other than the Company's retiree medical plan, as if the
Employee were still employed during such period. Such health and welfare
benefits shall be provided at the same level and at the same after-tax cost to
the Employee as is available to all of the Company's senior executives
generally. Where applicable, the Emp1oyee's salary, for purposes of such plans,
shall be determined at the greater of (i) the annual rate in effect on the date
when the termination of the Employee's employment with the Company is effective
or (ii) the annual rate in effect on the date of the Change in Control,
disregarding for this purpose any reduction in salary that would constitute Good
Reason hereunder. To the extent the Company is unable or does not wish to cover
the Employee under its plans during the Continuation Period, the Company shall
provide the Employee with substantially equivalent benefits on an individual
basis at no additional after-tax cost to the Employee. With respect to any
welfare benefits other than major medical benefits, if the Company is unable to
provide such benefits under its plans or to provide the Employee with
substantially equivalent benefits on an individual basis at a cost that is not
more than 150% of the cost of providing such benefits under its plans (assuming
the Employee were eligible to participate in such policies as an employee of the
Company), the Company may elect to pay to the Employee a lump sum payment equal
to three times the annual premiums the Company was paying for such benefits at
the time of the Employee's termination of employment. The foregoing
notwithstanding, in the event the Employee becomes eligible for comparable group
insurance coverage in connection with new employment, the coverage provided by
the Company under this Subsection (c) shall terminate immediately. Any group
health continuation coverage the Company is required to offer under the
Consolidated Omnibus Budget Reconciliation Act of 1985 shall commence when
coverage under this Subsection (c) terminates.
d) Outplacement Services. In the event of a Qualifying Termination of
Employment (as that term is defined in Section 8 hereof), the Employee shall be
entitled
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to senior executive level outplacement services at the Company's expense. Such
services shall be provided by a firm selected by the Employee from a list
compiled by the Company.
e) Financial Planning. In the event of a Qualifying Termination of
Employment (as that term is defined in Section 8 hereof), during the
Continuation Period the Employee shall be entitled to receive reimbursement for
financial planning at the greater of the level the Employee was receiving (i) at
the time of termination or (ii) at the time of the Change in Control, if
applicable.
12. EXCISE TAXES.
a) Gross-Up Payment. If it is determined that any payment, benefit or
distribution of any type to or for the benefit of the Employee by the Company,
any of its affiliates, any person or entity that acquires ownership or effective
control of the Company or ownership of a substantial portion of the Company's
assets (within the meaning of section 280G of the Internal Revenue Code of 1986,
as amended (the "Code"), and the regulations thereunder) or any affiliate of
such person or entity, whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise (the "Total Payments"),
would be subject to the excise tax imposed by section 4999 of the Code or any
interest or penalties with respect to such excise tax (such excise tax and any
such interest or penalties are collectively referred to as the "Excise Tax"),
then the Employee shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount calculated to ensure that after payment by the
Employee of all taxes (and any interest or penalties imposed with respect to
such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the
Employee retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Total Payments. Payments under this section are payable to the
Employee, even if the Employee is not eligible for employment termination
benefits under this agreement.
b) Determination by Accountant. All determinations and calculations
required to be made under this Section 12 shall be made by an independent
accounting firm selected by the Employee from among the largest six accounting
firms in the United States (the "Accounting Firm"), which shall provide its
determination (the "Determination"), together with detailed supporting
calculations regarding the amount of any Gross-Up Payment and any other relevant
matter, both to the Company and the Employee within five days of the termination
of the Employee's employment, if applicable, or such earlier time as is
requested by the Company or the Employee (if the Employee reasonably believes
that any of the Total Payments may be subject to the Excise Tax). If the
Accounting firm determines that no Excise Tax is payable by the Employee, it
shall furnish the Employee with a written statement that such Accounting Firm
has concluded that no Excise Tax is payable (including the reasons therefor) and
that the Employee has substantial authority not to report any Excise Tax on the
Employee's federal income tax return. If a Gross-Up Payment is determined to be
payable, it shall be paid to the Employee within five days after the
Determination is
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delivered to the Company or the Employee. Any determination by the Accounting
Firm shall be binding upon the Company and the Employee.
c) Over- and Underpayments. As a result of uncertainty in the application
of section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the
Company should have been made ("Underpayment"), or that Gross-Up Payments will
have been made by the Company which should not have been made ("Overpayments").
In either such event, the Accounting Firm shall determine the amount of the
Underpayment or Overpayment that has occurred. In the case of an Underpayment,
the amount of such Underpayment shall be promptly paid by the Company to or for
the benefit of the Employee. In the case of an Overpayment, the Employee shall,
at the direction and expense of the Company, take such steps as are reasonably
necessary (including the filing of returns and claims for refund), follow
reasonable instructions from, and procedures established by, the Company, and
otherwise reasonably cooperate with the Company to correct such Overpayment,
provided, however, that (i) the Employee shall in no event be obligated to
return to the Company an amount greater than the net after-tax portion of the
Overpayment that the Employee has retained or has recovered as a refund from the
applicable taxing authorities and (ii) this provision shall be interpreted in a
manner consistent with the intent of Subsection (a) above, which is to make the
Employee whole, on an after-tax basis, from the application of the Excise Tax,
it being understood that the correction of an Overpayment may result in the
Employee's repaying to the Company an amount which is less than the Overpayment.
d) Limitation on Parachute Payments. Any other provision of this Section
12 notwithstanding, if the Excise Tax could be avoided by reducing the Total
Payments by 5% or less, then the Total Payments shall be reduced to the extent
necessary to avoid the Excise Tax and no Gross-Up Payment shall be made. If the
Accounting Firm determines that the total Payments are to be reduced under the
preceding sentence, then the Company shall promptly give the Employee notice to
that effect and a copy of the detailed calculation thereof. The Employee may
then elect in the Employee's sole discretion, which and how much of the total
Payments are to be eliminated or reduced (as long as after such election no
Excise Tax will be payable) and shall advise the Company in writing of the
Employee's election within 10 days of receipt of notice. If no such election is
made by the Employee within such 10 day period then the Company may elect which
and how much of the total Payments are to be eliminated or reduced (as long as
after such election, no Excise Tax will be payable) and shall notify the
Employee promptly of such election.
13. TERMINATION UPON DEATH. In the event of the Employee's death, this
Agreement shall terminate and the Company shall only be obligated to (a) pay to
the Employee's estate or legal representative the annual base salary to the
extent earned by the Employee prior to the Employee's death, (b) take all
necessary actions so that all restrictions on the Employee's restricted stock
shall lapse and all of the Employee's stock options shall vest and become
immediately exercisable in full as of the time of the
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Employee's death, and (c) take all necessary actions so that all pension
benefits accruing under the SERP shall immediately become vested in full as of
the time of the Employee's death. The Company may, however, pay the estate or
legal representative a bonus that the Employee has earned prior to his death.
After making such payment(s) and providing such benefits, the Company shall have
no further obligations under this Agreement.
14. DISABILITY. In the event of the Employee's Disability (as defined in
Section 5 herein), the Company shall have the right, at its option, to terminate
the Employee's employment. Unless and until so terminated, during any period of
Disability during which the Employee is unable to perform the services required
of him, the Employee's salary shall be payable to the extent of, and subject
to, the Company's policies and practices then in effect with regard to sick
leave and disability benefits. In the event of the Employee's termination due to
the Employee's Disability, the Company shall only be obligated to (a) pay to the
Employee or his personal representative the Employee's annual base salary to the
extent earned by the Employee prior to the termination of employment, (b) take
all necessary actions so that all restrictions on the Employee's restricted
stock shall lapse and all of the Employee's stock options shall vest and become
immediately exercisable in full as of the time of the Employee's Disability, and
(c) take all necessary actions so that all pension benefits accruing under the
SERP shall immediately become vested in full as of the time of the Employee's
Disability. In addition, until a date three years from the date of termination,
the Employee shall remain eligible for the benefits and perquisites including
but not limited to disability benefits in accordance with the Company's policy
in effect from time to time. After making such payment(s) and providing such
benefits, the Company shall have no further obligations under this Agreement.
15. TERMINATION FOR CAUSE OR WITHOUT GOOD REASON. In the event that the
Company terminates the Employee's employment for Cause (as defined in Section 4
herein) or the Employee terminates his employment without Good Reason (as
defined in Section 3 herein), the Company shall only be obligated to pay to the
Employee the Employee's annual base salary to the extent earned by the Employee
prior to the termination of employment. After making such payment, the Company
shall have no further obligations under this Agreement.
16. RESTRICTIVE COVENANTS.
a) Confidential Information. During the period of his employment, Employee
shall hold in a fiduciary capacity for the benefit of the Company and its
affiliates all trade secrets, proprietary or confidential information, knowledge
or data relating to the Company, and/or their respective businesses, which shall
have been obtained by Employee. Trade secret information includes, but is not
limited to, customer lists, pricing information, sales reports, financial and
marketing data, reserves estimation processes or procedures, techniques, or
processes that: (i) derive independent economic value, actual or potential, from
not being generally known to the public or to persons who can obtain economic
value from their disclosure or use, and (ii) are the subject of
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reasonable efforts under the circumstances to maintain their secrecy. After
termination of Employee's employment with the Company, Employee shall not,
without the prior written consent of the Company, use, communicate or divulge
any such information, knowledge or data to anyone at any time.
b) Covenant Not to Compete. Employee agrees not to, during the course of
employment and for a period of two years commencing upon the termination of
employment, voluntarily or involuntarily, for any reason whatsoever, (i)
directly or indirectly, individually or on behalf of persons not now parties to
this Agreement, or as a director, officer, principal, agent, executive, or in
any other capacity or relationship, engage in any business or employment, or aid
or endeavor to assist any business or legal entity that is in the commercial,
hotel and/or residential real estate development business that Competes with the
Company anywhere in Florida or (ii) hold, directly or indirectly, more than five
percent of any class of stock of any corporation or more than a 5% interest in
any partnership or other business or legal entity that is in the commercial,
hotel and/or residential real estate development business that Competes with the
Company anywhere in Florida, provided, however, that in no event shall the
Employee be prohibited from representing any company, partnership, other entity
or an individual as legal counsel as a private practitioner or as affiliated
with a law firm. "Competes" shall be defined as engaging in commercial, hotel
and/or residential rea1 estate development projects where total annual
development costs for all such commercial, hotel and/or residential projects in
Florida meet or exceed $50,000,000. The Company and Employee acknowledge the
reasonableness of this covenant not to compete and the reasonableness of the
geographic area and duration of time which are part of said covenant. This
covenant not to compete is contemplated to protect Company's legitimate business
interests.
c) Solicitation of Customers by Employee. Unless waived in writing by the
Company, Employee further agrees that he will not, directly or indirectly,
during the course of employment and for two years after termination of his
employment, solicit the trade or patronage of any of the customers of the
Company, regardless of the location of such customers of the Company with
respect to any services, products, or other matters in which the Company is
active.
d) Solicitation of Company Employees. Unless waived in writing by the
Company, Employee further agrees that he will not, directly or indirectly,
during the course of employment and for two years after termination of his
employment, solicit or attempt to entice away from the Company any director,
agent or employee of the Company.
e) Compliance with Business Ethics and Conflict of Interest Policy. During
the Executive's employment with the Company, the Employee shall comply in all
respects with the Company's Business Ethics and Conflict of Interest Policy
attached hereto as exhibit "A," and as may be amended from time to time.
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f) Survival; Injunctive Relief. Employee agrees that subsections (a)
through (d) of this Section 16 shall survive the termination of (i) this
Agreement and (ii) the period of his employment hereunder. Employee acknowledges
that the Company has no adequate remedy at law and would be irreparably harmed
if Employee breaches or threatens to breach any of the provisions of this
Section 16 and, therefore, agrees that the Company shall be entitled to
injunctive relief to prevent any such breach or threatened breach thereof and to
specific performance of the terms of this Section 16 (in addition to any other
legal or equitable remedy the Company may have). Employee further agrees that
Employee shall not, in any equity proceeding relating to the enforcement of this
Section 16, raise the defense that the Company has an adequate remedy at law.
Nothing in this Agreement shall be construed as prohibiting the Company from
pursuing any other remedies at law or in equity that it may have under and in
respect of this Agreement or any other agreement.
17. SUCCESSORS.
a) Company's Successors. The Company shall require any successor (whether
direct or indirect by purchase, lease, merger, consolidation, liquidation or
otherwise) to all or substantially all of the Company's business or assets, by
an agreement in substance and form satisfactory to the Employee, to assume this
Agreement and to agree expressly to perform this Agreement in the same manner
and to the same extent as the Company would be required to perform it in the
absence of a succession. For all purposes under this Agreement, the term
"Company" shall include any successor to the business or assets of the Company
which executes and delivers the assumption agreement described in this
Subsection (a) or which becomes bound by this Agreement by operation of law.
b) Employee's Successors. This Agreement and all rights of the Employee
hereunder shall inure to the benefit of, and be enforceable by, the Employee's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
18. LIQUIDATED DAMAGES. The payments and benefits provided in Sections 9,
10, 11, 12, 13, 14, and 15 are intended to be liquidated damages for a
termination of the Employee's employment by the Company without cause or for the
actions of the Company leading to a termination of the Employee's employment by
the Employee for Good Reason, and shall be the sole and exclusive remedy
therefor.
19. RELEASE. Notwithstanding any provision herein to the contrary, the
Company may require that, prior to payment of any amount or provision of any
benefit under Sections 9, 10, 11, or 12 of this Agreement, the Employee shall
have executed a complete release of the Company and its affiliates and related
parties in such form as is reasonably acceptable to both parties and any waiting
periods contained in such release shall have expired.
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20. INSURANCE AND INDEMNIFICATION. The Company will indemnify the Employee
for his actions as a Company employee or officer pursuant to Company policy.
21. MISCELLANEOUS PROVISIONS.
a) Notice. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. In the case of the Employee, mailed
notices shall be addressed to the Employee at the home address that the Employee
most recently communicated to the Company in writing. In the case of the
Company, mailed notices shall be addressed to its corporate headquarters, and
all notices shall be directed to the attention of its Secretary.
b) Waiver. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in writing
and signed by the Employee and by an authorized officer of the Company (other
than the Employee). No waiver by either party of any breach of, or of compliance
with, any condition or provision of this Agreement by the other party shall be
considered a waiver of any other condition or provision or of the same condition
or provision at another time.
c) Other Agreements; Amendment. This Agreement supersedes the Severance
Agreement dated November 3, 1997 between the Employee and the Company (the
"Severance Agreement"). As of the Effective Date, the Severance Agreement shall
be deemed null and void, and neither the Company nor the Employee shall have any
rights or obligations thereunder. This Agreement does not supersede the
Executive's employment agreement or any stock option, restricted stock or other
equity-based incentive compensation agreement between the Employee and the
Company. This Agreement may be amended only in writing, by an instrument
executed by both parties.
d) No Setoff; Withholding Taxes. There shall be no right of setoff or
counterclaim, with respect to any claim, debt or obligation, against payments to
the Employee under this Agreement. Except as provided in Section 12, all
payments made or benefits provided under this Agreement shall be subject to
reduction to reflect taxes required to be withheld by law. The payments received
under this Agreement shall be in lieu of, and not in addition to, any payments
or benefits received in connection with the Company's general severance policy
then in effect. Should any payment be made or benefits be provided under any
such severance policy, the payments and benefits provided hereunder shall be
correspondingly reduced by such payments and/or benefits.
e) Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Florida, except their choice-of-law provisions.
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f) Severability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision hereof, which shall remain in full force and effect
g) Arbitration. Except as otherwise provided in Section 12, any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be settled by arbitration in Jacksonville, Florida, in accordance
with the Commercial Arbitration Rules of the American Arbitration Association.
Arbitration shall be the exclusive remedy for resolving disputes arising under
this Agreement. Discovery shall be permitted to the same extent as in a
proceeding under the Federal Rules of Civil Procedure. Judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. All fees and expenses of the arbitrator and such Association shall be
paid as determined by the arbitrator.
h) Legal Fees. In the event of any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, the Company shall pay (on an
as-incurred basis) the reasonable fees and costs of the Employee's attorneys
attributable to such controversy or claim (the "Legal Fees"); provided that, the
Employee shall reimburse the Company for all such Legal Fees if the Employee
does not prevail on at least one material issue arising in such controversy or
claim.
i) No Assignment. The rights of any person to payments or benefits under
this Agreement shall not be made subject to option or assignment, either by
voluntary or involuntary assignment or by operation of law, including (without
limitation) bankruptcy, garnishment, attachment or other creditor's process, and
any action in violation of this Subsection (i) shall be void.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in
the case of the Company by its duly authorized officer, as of the day and year
first above written.
EMPLOYEE THE ST. XXX COMPANY
By /s/ Xxxxxx X. Xxxxxx By /s/ Xxxxxxxx Xxxxxxxx
--------------------------------- -------------------------------------
Xxxxxx X. Xxxxxx Xxxxxxxx Xxxxxxxx
Title Executive VP & General Counsel Title VP-HR
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Date 8/21/01 Date 8-21-01
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