CONFIDENTIALITY AND NONCOMPETITION AGREEMENT
Exhibit 10.5
This CONFIDENTIALITY AND NONCOMPETITION AGREEMENT (this “Agreement”), is made and
entered into as of the 29th day of March, 2011 (the “Effective Date”), by and
between Campus Crest Communities, Inc. (“Campus Crest”), and Xxxxxx Xxxx, an individual (the
“Executive”) (the Company and the Executive are hereinafter sometimes collectively referred
to as the “Parties”).
W I T N E S S E T H :
WHEREAS, the Company and Executive have entered into an employment agreement (the
“Employment Agreement”) on a date even herewith; and
WHEREAS, the Company, as a condition of entering into the Employment Agreement with
Executive, desires to obtain certain restrictive covenants from Executive, as described below, and
Executive is willing to agree to such restrictive covenants in consideration of the employment,
compensation and benefits set forth in the Employment Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein
and for other good and valuable consideration, the receipt and sufficiency of which is mutually
acknowledged, the Company and Executive agree as follows:
Section 1. Definitions.
(a) “Board” shall mean the Board of Directors of the Company.
(b) “Cause” shall have the meaning set forth in the Employment
Agreement.
(c) “Change in Control” shall have the meaning set forth sin the
Employment Agreement.
(d) “Competitive Activities” shall mean any business activities
involving the development, construction, acquisition, sale, marketing or
management of facilities whose primary function and purpose is student
housing and/or the provision of third party student housing services to
providers of student housing.
(e) “Confidential Information” shall have the meaning set forth in
Section 3 hereof.
(f) “Developments” shall have the meaning set forth in Section 7
hereof.
(g) “Good Reason” shall have the meaning set forth in the Employment
Agreement.
(h) “Restricted Period” shall mean the period commencing on the
Effective Date and ending on the second (2nd)
anniversary of the termination of Executive’s employment.
(i) “Company” shall mean Campus Crest and any parent,
subsidiary or affiliated companies of Campus Crest.
Section 2. Reasonableness of Covenants.
Executive acknowledges and agrees that (A) the agreements and covenants contained in this
Agreement are (i) reasonable and valid in geographical and temporal scope and in all other
respects, and (ii) essential to protect the value of the Company’s business and assets, and (B) by
his employment with the Company, Executive will obtain specialized and confidential knowledge,
contacts, know-how, training and experience at significant expense to the Company and there is a
substantial probability that such knowledge, know-how, contacts, training and experience could be
used to the substantial advantage of a competitor of the Company and to the Company’s substantial
detriment.
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Section 3. Confidential Information.
At any time during and after the end of Executive’s employment with the Company, without
the prior written consent of the Board, except to the extent required by an order of a court having
jurisdiction or under subpoena from an appropriate government agency, in which event, Executive
shall use his best efforts to consult with the Board prior to responding to any such order or
subpoena, and except as required in the performance of his duties under the Employment Agreement,
Executive shall not disclose any confidential or proprietary trade secrets, customer lists,
drawings, designs, information regarding product development, marketing plans, sales plans,
manufacturing plans, management organization information, operating policies or manuals, business
plans, financial records, packaging design or other financial, commercial, business or technical
information (a) relating to the Company, or (b) that the Company may receive belonging to
suppliers, customers or others who do business with the Company (“Confidential
Information”). Executive’s obligation under this Section 3 shall not apply to any information
which (i) is known publicly; (ii) is in the public domain or hereafter enters the public domain
without the breach of the Executive of this Section 3; (iii) is known to Executive prior to his
receipt of such information from the Company, as evidenced by Executive’s written records; or (iv)
is disclosed after termination of Executive’s employment to Executive by a third party not under an
obligation of confidence to the Company.
Section 4. Non-Competition.
Executive covenants and agrees that during the Restricted Period, in any State of the
United States of America in which the Company conducts business, has purchased or is under contract
to purchase real estate to conduct business or has identified specific sites as potential future
development opportunities, Executive shall not, directly or indirectly: (a) engage in Competitive
Activities, whether individually or as principal, partner, officer, director, consultant,
contractor, employee, stockholder or manager of any person, partnership, corporation, limited
liability company or any other entity; or (b) own interests in student housing properties that are
competitive, directly or indirectly, with any business carried on by the Company. Notwithstanding
the foregoing, Executive may, directly or indirectly, own, solely as an investment, securities of
any entity engaged in Competitive Activities which are publicly traded on a national or regional
stock exchange or on the over-the-counter market; provided that Executive (A) is not a controlling
person of, or member of a group which controls, such entity and (B) does not, directly or
indirectly, own 2% or more of any class of securities of any such entity.
Section 5. Non-Solicitation; Non-Interference.
During the Restricted Period, Executive shall not, directly or indirectly, for his own
account or benefit or for the account or benefit of any other individual or entity, nor shall he
directly or indirectly assist any person or entity to (i) encourage, solicit or induce, or in any
manner attempt to solicit or induce, any person employed by, as agent of, or as service provider
to, the Company to terminate such person’s employment, agency or service, as the case may be, with
the Company; or (ii) divert, or attempt to divert, any person, concern, or entity from doing
business with the Company, or attempt to induce any such person, concern or entity to cease being a
customer or supplier of the Company.
Section 6. Return of Documents.
In the event of the termination of Executive’s employment for any reason, Executive shall
deliver to the Company all of (i) the property of the Company, and (ii) the documents and data of
any nature and in whatever medium of the Company, its customers, suppliers, investors or other
third parties who entrusted such documents or data to the Company, and he shall not take with him
any such property, documents or data or any reproduction thereof, or any documents containing or
pertaining to any Confidential Information.
Section 7. Works for Hire.
Executive agrees that the Company shall own all right, title and interest (including
patent rights, copyrights, trade secret rights, mask work rights and other rights throughout the
world) in any inventions, works of
authorship, mask works, ideas or information discovered, created, made, conceived or reduced
to practice, in whole or in part, by Executive (either alone or with others) during the Term of
Employment that relate to the Company’s business activities (the “Developments”);
provided, however, that the Company shall not own Developments for which no
equipment, supplies, facilities, trade secret information or Confidential Information of the
Company was used and which
were developed entirely off of Company premises and on Executive’s own
personal time, and which
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do not relate (A) to the business, plans, or affairs of the Company, or
(B) to the Company’s actual or demonstrably anticipated research or development (“Excluded
Developments”). Executive agrees to assign, and hereby does assign to the Company all right, title
and interest in and to any and all of these Developments with the sole exception of those that
Executive demonstrates are Excluded Developments. Executive agrees to assist the Company, at the
Company’s expense, to further evidence, record, confirm, effect, enable and perfect such
assignments to Company, and to perfect, obtain, maintain, enforce, and defend all rights, title,
and interest specified to be so owned or assigned. To the extent permissible by law, Executive
hereby irrevocably designates and appoints the Company and its agents as attorneys-in-fact to act
for and on Executive’s behalf to execute and file any document and to do all other lawfully
permitted acts to further the purposes of the foregoing with the same legal force and effect as if
executed by Executive. In addition, and not in contravention of any of the foregoing, Executive
acknowledges that all original works of authorship which are made by him (solely or jointly with
others) within the scope of employment and which are protectable by copyright shall to the extent
possible under U.S. law be considered “works made for hire,” as that term is defined in the United
States Copyright Act (17 USC Sec. 101). Further, to the extent that Company is not considered the
author and original owner of any Developments, Executive agrees to waive and hereby does waive any
and all interests or rights in the nature of paternity, integrity, disclosure and withdrawal and
any other rights or interests that may be known as or referred to as “moral rights” under the law
of any jurisdiction. To the extent Executive retains any such moral rights or other rights or
interests under applicable law, consents to any action consistent with the terms of this Agreement
with respect thereto, in each case, to the full extent of such applicable law. Executive will
confirm any such waivers and consents from time to time as requested by the Company.
Section 8. Enforceability and Reformation; Severability.
The Parties intend for all provisions of this Agreement to be enforced to the fullest extent
permitted by law. Accordingly, in the event that any provision or portion of this Agreement is
held to be illegal, invalid or unenforceable, in whole or in part, for any reason, under present or
future law, such provision shall be severable and the remainder thereof shall not be invalidated or
rendered unenforceable or otherwise adversely affected. Without limiting the generality of the
foregoing, if a court should deem any provision of this Agreement to create a restriction that is
unreasonable as to scope, duration or geographical area or otherwise, the Parties agree that the
court may modify or blue pencil the provisions of this Agreement and that the provisions shall be
enforceable in such scope, for such duration and in such geographic area as any court having
jurisdiction may determine to be the longest period and/or greatest size permissible and reasonable
under the law.
Section 9. Injunctive Relief.
Without intending to limit the remedies available to the Company, Executive acknowledges
that a breach of any of the covenants contained in this Agreement may result in material
irreparable injury to the Company for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event of such a breach or
threat thereof, the Company shall be entitled to obtain a temporary restraining order and/or a
preliminary or permanent injunction, without the necessity of proving irreparable harm or injury as
a result of such breach or threatened breach of this Agreement, restraining Executive from engaging
in activities prohibited by this Agreement or such other relief as may be required specifically to
enforce any of the covenants in this Agreement. Notwithstanding any other provision to the
contrary, the Restricted Period shall be tolled during any period of violation of any of the
covenants in Section 4 or Section 5 hereof and during any other period required for litigation
during which the Company seeks to enforce this covenant against Executive if it is ultimately
determined that Executive was in breach of such covenants.
Section 10. Fees And Costs.
If either Party initiates any action or proceeding to enforce any of its rights hereunder
or to seek damages for any violation hereof, then, the Parties shall bear their respective costs
and expenses of any such proceeding; provided, that, in addition to all other remedies that
may be granted, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees
and all other costs that it may sustain in connection with such action or proceeding.
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Section 11. Successors and Assigns.
This Agreement shall inure to the benefit of and be enforceable by, and may be assigned
by the Company to, any purchaser of all or substantially all of the Company’s business or assets,
any successor to the Company or any assignee thereof (whether direct or indirect, by purchase,
merger, consolidation or otherwise).
Section 12. Waiver and Amendments.
Any waiver, alteration, amendment or modification of any of the terms of this Agreement
shall be valid only if made in writing and signed by the parties hereto; provided,
however, that any such waiver, alteration, amendment or modification is consented to on the
Company’s behalf by the Board. No waiver by either of the parties hereto of their rights hereunder
shall be deemed to constitute a waiver with respect to any subsequent occurrences or transactions
hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.
Section 13. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the
State of North Carolina (without giving effect to the choice of law principles thereof) applicable
to contracts made and to be performed entirely within such state.
Section 14. Section Headings.
The headings of the sections and subsections of this Agreement are inserted for
convenience only and shall not be deemed to constitute a part thereof or affect the meaning or
interpretation of this Agreement or of any term or provision hereof.
Section 15. Entire Agreement.
This Agreement constitutes the entire understanding and agreement of the parties hereto
regarding the subject matter hereof. This Agreement supersedes all prior negotiations, discussions,
correspondence, communications, understandings and agreements between the parties relating to the
subject matter of this Agreement.
Section 16. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed
to be an original but all of which together shall constitute one and the same instrument. The
execution of this Agreement may be by actual or facsimile signature.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first
above written.
| CAMPUS CREST COMMUNITIES, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxxx, Xx. | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| EMPLOYEE: |
||||
| /s/ Xxxxxx Xxxx | ||||
| Xxxxxx Xxxx | ||||
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