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EXHIBIT 10.10
STRATEGIC TIMBER TRUST, INC.
EMPLOYMENT AND NONCOMPETITION AGREEMENT
Strategic Timber Trust, Inc., a Georgia corporation (hereinafter "STT" or
"Employer") and C. Xxxxxx Xxxxx ("Executive") hereby agree as follows:
1. EMPLOYMENT
This Agreement is entered into by STT and Executive in contemplation of a
registered initial public offering of STT's common stock ("the IPO"). Executive
acknowledges that he has special knowledge, expertise, contacts and other
information with respect to the Restricted Business (as defined below), that he
will be provided with confidential information (as defined below) and that STT's
employment of Executive upon the consummation of the IPO is in consideration of
the promises and agreements contained in this Agreement. This Agreement shall
govern the employment of Executive as an officer of STT.
2. EFFECTIVENESS OF AGREEMENT; TERM
This Agreement shall become effective on the consummation of the IPO ("the
Effective Date"), but shall be void and of no further effect if the IPO has not
been consummated by December 31, 1999. The term of Executive's employment
pursuant to this Agreement shall be for the period from and including the
Effective Date until and including the fourth anniversary of the Effective Date,
and for additional, consecutive one-year periods thereafter, all unless earlier
terminated as provided in Section 8, below.
3. DUTIES AND RESPONSIBILITIES
During Executive's employment pursuant to this Agreement, Executive shall hold
such office or offices as he shall be elected to by the Board of Directors of
STT, shall perform the duties of such office or offices pursuant to the
direction of the Board of Directors of STT (or any committee thereof) , shall
perform such duties to the best of his ability, shall use his good faith efforts
to promote the success of the business of STT, shall devote substantially all of
his business time to the affairs of STT and shall not engage in any other
business activity or occupation during normal business hours for gain, profit,
or other pecuniary advantage; provided, however, that the foregoing shall not be
construed as preventing Executive from investing or trading for his own benefit
or for that of the members of his family in stocks, bonds, securities or other
similar forms of investment in public securities markets, serving as a director
of another corporation or engaging in any family enterprise or in charitable,
civic or other similar pursuits, so long as they do not materially interfere
with Executive's performance of his duties under this Agreement. Further, and
notwithstanding any of the foregoing to the contrary, it is acknowledged that
Executive serves and may continue to serve on the board of directors, advisory
board, or in a similar capacity for one or more timber investment funds which
are engaged in the acquisition and management of timberlands located outside the
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United States (each an "Other Fund"), and that STT's timberland ownership may
expand to include ownership of timberlands outside the United States. Therefore,
if STT wishes to bid on a property and any Other Fund is the seller of the
property or also wishes to bid on the property, Executive will not participate
in the transaction on behalf of such Other Fund. In addition, Executive agrees
that he will devote no more than five percent (5%) of his business time to his
interest in Other Funds.
4. COMPENSATION AND RELATED MATTERS
(a) BASIC: During the Executive's employment pursuant to this
Agreement, STT:
(i) shall pay Executive a minimum salary of $ 225,000.00
per annum in accordance with STT's normal and usual
payroll schedule ("Salary), and
(ii) shall include Executive in all retirement plans,
insurance plans and other fringe benefits and
arrangements that may be authorized and adopted for
the benefit of executives of STT generally.
("Benefits" ).
(b) RAISES AND BONUSES: STT's Board of Directors, acting directly
or through its Compensation Committee, may, in its sole
discretion and for any reason, increase Executive's salary
and/or grant Executive additional compensation as a bonus (a
"Bonus") .
(c) VACATIONS, HOLIDAYS AND SICK LEAVE: Executive shall be
entitled to vacation, holidays and sick days with pay as
determined by STT.
(d) NO DIVESTMENT: No termination of Executive's employment shall
divest Executive of his right to receive all or any unpaid
portion or installment of any of his Salary or Bonus to which
he is otherwised entitled pursuant to the terms of this
Agreement.
5. NONCOMPETITION; NO INTERFERENCE
(a) CERTAIN DEFINED TERMS: For purposes of this Agreement, the
following words and phrases have the meanings set forth below:
(i) "CUSTOMER" means any purchaser of timber from
Employer, and any potential purchaser solicited by
Employer, with which Executive had contact during the
term of his employment hereunder.
(ii) "PROPERTY OWNERS" means persons and entities with
whom Employer has contracted for, or with whom
Employer has undertaken any phase of negotiation
regarding, the acquisition of timberlands, timber
cutting rights, timber deeds, or any other types of
property rights, with which Executive had contact
during the term of his employment hereunder.
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(iii) "RESTRICTED BUSINESS" means the business of owning
timberland, selling or purchasing timberland, and
selling timber or cut logs, or any of the foregoing,
whether undertaken directly or indirectly.
(iv) "TERRITORY" means Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx xxx
Xxxxx Xxxxxxx.
(v) "RESTRICTED PERIOD" means the period of Executive's
employment with STT pursuant to this Agreement (i.e.,
the period extending from the Effective Date until
the Termination Date, as defined in paragraph no.
8(b)(vi), below) plus one year from the Termination
Date.
(vi) "EMPLOYER," for purposes of this Section 5 only,
means STT, Strategic Timber Operating Co. ("STOC"),
Strategic Timber Partners, LP ("STP") and their
subsidiaries and affiliates which were in existence
on the Effective Date or which came into existence
during the term of this Agreement as set forth in
Section 2, above, up to and including the Termination
Date.
(b) NONCOMPETITION: During the Restricted Period, Executive shall
not, either directly or indirectly:
(i) have any ownership interest (whether as proprietor,
partner, stockholder or otherwise) in, or
(ii) be an officer, director or general or managing
partner of, or hold a similar position in, or
(iii) act as agent, broker or distributor for, or advisor
or consultant to, or
(iv) be employed in an executive or management position
with
any business however organized or conducted which is engaged
or which Executive knows or reasonably should know plans to
become engaged in the Restricted Business in the Territory
without the permission of the disinterested members of STT's
Board of Directors. Further, any ownership interest held by
Executive at the time of the execution of this Agreement shall
be deemed so permitted. However, notwithstanding any of the
foregoing, the ownership by Executive of less than one percent
(1%) of the shares of the capital stock of a publicly held
entity shall in no event be deemed a violation of any
provision of this paragraph.
(c) NO INTERFERENCE WITH CUSTOMERS OR PROPERTY OWNERS: During the
Restricted Period, Executive will not in any way, directly or
indirectly:
(i) call upon, compete for, solicit, divert or take away,
or attempt to solicit, divert or take away, from
Employer the business of any Customer; or
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(ii) attempt or seek to cause any Customer to refrain, in
any respect, from doing business with Employer, or
intentionally interfere with, disrupt or attempt to
disrupt the relationship, contractual or otherwise,
between Employer and Customer; or
(iii) call upon, compete for, solicit, divert or take away,
or attempt to solicit, divert or take away, any
pending or contemplated acquisition of timberlands,
timber cutting rights, timber deeds, or any other
type of property rights, from a Property Owner; or
(iv) attempt or seek to cause any Property Owner to
refrain from consummating any pending or contemplated
transaction with Employer, or intentionally interfere
with, disrupt or attempt to disrupt the relationship,
contractual or otherwise, between Employer and any
Property Owner.
(d) NO INTERFERENCE WITH EMPLOYEES. During the Restricted Period,
Executive will not in any way, directly or indirectly, request
or induce any other employee of Employer to terminate his
employment with Employer.
(e) NO EFFECT OF TERMINATION OF EMPLOYMENT. The termination of
Executive's employment with STT shall not limit or otherwise
affect the agreements set forth in this Section 5, which shall
continue and expressly survive the termination of Executive's
employment and this Agreement.
6. RECORDS/NONDISCLOSURE/COMPANY POLICIES
(a) GENERAL: All records, financial statements and similar
documents obtained, reviewed or compiled by Executive as part
of the performance of his services for or duties to Employer
pursuant to this Agreement shall be the exclusive property of
Employer, and Executive shall have no rights in such documents
on or after the earlier of Executive's Termination Date (as
defined in paragraph no. 8(b)(vi), below) or the last day of
the term of this Agreement as set forth in Section 2, above.
(b) CONFIDENTIAL INFORMATION AND TRADE SECRETS: Executive will not
disclose to any person or entity or use for his own benefit or
gain, any confidential information or trade secrets of the
Employer obtained by him incident to his employment with STT.
Executive shall take all reasonable steps to safeguard any
confidential information and trade secrets and to protect same
against disclosure, misuse, loss or theft. The term
"Confidential Information" includes, without limitation,
financial information, business plans, prospects and
opportunities which have been discussed or considered by the
management of Employer, but does not include any information
which has become part of the public domain by means other than
Executive's failure to observe his obligations hereunder.
However, nothing in this paragraph shall be construed as
prohibiting, restricting or preventing Executive from making
any disclosure required by applicable law, the rules of the
New York Stock Exchange or of any other securities market on
which STT's securities are listed, or which are otherwise
called for in connection with
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the performance of his duties and responsibilities thereunder
or pursuant to this Agreement.
(c) SURVIVAL: The agreements set forth in this Section 6 shall
survive beyond the term of Executive's employment, as set
forth in Section 2, above, and shall remain in full force and
effect for seven (7) years thereafter.
7. CERTAIN GENERAL PROVISIONS
(a) REPRESENTATIONS AND WARRANTIES: Executive represents and
warrants to STT:
(i) that, excluding any statutory or case law generally
applicable to all persons or entities, he is not
subject to any decision, order, decree or judgment
issued by any governmental authority or arbitrator or
arbitration panel involving noncompetition,
nonsolicitation, rights to inventions, work product
or intellectual property;
(ii) that he will not use in his employment pursuant to
this Agreement, disclose to Employer or induce
Employer to use any trade secrets or proprietary or
confidential information or materials belonging to
others.
(b) REMEDIES: Any violation of any provision of the foregoing
Sections 5 and 6 may cause irreparable harm to Employer, and
damages may not be an adequate remedy. Employer shall
therefore be entitled to seek injunctive relief from any court
of competent jurisdiction in the United States of America
enjoining, prohibiting and restraining Executive from the
continuance of any such violation. However, should Employer
seek injunctive relief in any such court, Executive may then
elect to have any or all controversies or claims, including
any claim for injunctive relief, arising out of or relating to
this Agreement or the breach thereof heard and determined by
such court or by any other court of competent jurisdiction in
the United States of America or to have any or all such
controversies or claims settled by arbitration pursuant to the
provisions of paragraph no. 10(b), below.
(c) NOTICE TO OTHERS: Executive hereby agrees that,
notwithstanding any other provision of this Agreement,
Employer may disclose the prohibitions contained in Sections 5
and 6 hereof to any person or entity, including one that at
the time employs or is considering employing Executive.
(d) MODIFICATION: Should any provision of the foregoing Section 5
or 6 be deemed too broad to permit enforcement to its full
extent, then it shall be enforced to the maximum extent
permitted by law, and its scope may be judicially modified
accordingly in any proceeding brought to enforce such
restriction.
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8. TERMINATION
(a) CERTAIN DEFINED TERMS
(i) CHANGE OF CONTROL: A "Change of Control" shall be
deemed to have occurred when any of the following
events occurs:
(A) Any "person" (other than (1) any employee
plan established by STT, (2) STT, (3) an
underwriter temporarily holding securities
pursuant to an offering of such securities,
or (4) a corporation owned, directly or
indirectly, by stockholders of STT in
substantially the same proportions as their
ownership of STT) is or becomes the
beneficial owner, directly or indirectly, of
securities of STT representing 50% or more
of the combined voting power of STT's then
outstanding voting securities [as used in
this paragraph, "person" shall have the same
meaning as that term does as used in
Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended
(the "Exchange Act")]; or
(B) During any period of two consecutive years,
individuals who at the beginning of such
period constituted the Board and any new
director (other than an individual whose
nomination for election is in connection
with an actual or threatened election
contest relating to the election of the
directors of STT, as such terms are used in
Rule 14a-11 of Regulation 14A under the
Exchange Act) whose appointment, election,
or nomination for election by STT's
shareholders was approved by a vote of at
least two-thirds (2/3) of the directors then
still in office who either were directors at
the beginning of the period or whose
appointment, election or nomination for
election was previously so approved, cease
for any reason to constitute a majority of
the Board; or
(C) There is consummated a merger or
consolidation of STT with or into any other
corporation or other entity, or a
transaction having a similar result or
effect, other than a merger, consolidation,
or other transaction which would result in
the holders of the voting securities of STT
outstanding immediately prior thereto
holding securities which represent
immediately after such merger or
consolidation more than 65% of the combined
voting power of the voting securities of
either STT or the other entity which
survives such merger or consolidation or the
parent of the entity which survives such
merger or consolidation; or
(D) There is consummated a sale or disposition
by STT of all or substantially all of STT's
assets.
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(ii) DISABILITY: The term "disabled" and variations of it
mean a physical condition of Executive which is of a
nature and duration sufficient to require payment
under the provisions of STT's long-term disability
insurance covering Executive, if such a policy is in
effect at the time the disability commences, and, if
no such policy is then in effect, a disability
determined by a physician mutually agreed upon by STT
and the Executive to substantially interfere with the
Executive's ability to perform the essential duties
of his employment.
(iii) FOR CAUSE: The phrase "for cause" and variations of
it mean because of:
(A) willful failure (other than by reason of
disability) to perform any of the duties or
to fulfill any of the obligations set forth
in the provisions of Sections 3, 5 or 6,
above;
(B) willful failure (other than by reason of
disability) to respond to a request by the
Board of Directors or Chief Executive
Officer of STT which is reasonable in light
of Executive's duties as described in
Section 3 and of the resources and support
provided to him by Employer after notice and
reasonable opportunity to cure or comply;
(C) willful disclosure to any of Employer's then
or prospective competitors of any trade
secrets or confidential or proprietary
information of Employer; or Executive's
giving any such competitor material
assistance in the conduct of such
competitor's business;
(D) willfully giving any of Employer's then or
prospective competitors material assistance
in the conduct of its business;
(E) willfully engaging in any act that
constitutes a material conflict of interest
with Employer, except as is expressly
permitted under this Agreement with respect
to Other Funds;
(F) willful usurpation of a material business
opportunity of Employer;
(G) willful misappropriation of a material
amount of Employer's funds or property;
(H) willfully attempting to secure any personal
profit in connection with any transaction
entered into on behalf of Employer, except
as is expressly permitted under this
Agreement with respect to Other Funds;
(I) conviction of or the entering of a guilty
plea in any court of competent jurisdiction
in the United States of America with respect
to fraud, theft, embezzlement or any other
felony demonstrated to have a direct,
material, adverse financial effect on
Employer or on a customer or property owner;
or
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(J) conviction of or the entering of a guilty
plea in any court of competent jurisdiction
in the United States of America with respect
to a felony which demonstrably and
materially impairs or xxxxx Employer's
ability to conduct its business.
(iv) FOR GOOD REASON: For purposes of this Agreement, the
phrase "for good reason" and variations of it shall
mean because of:
(A) Employer's assignment of Executive, without
his consent, to a position, responsibilities
or duties of any materially lesser status or
degree of responsibility or authority than
his position, responsibilities or duties at
the Effective Date; or
(B) Employer's diminution of, or refusal to pay
when due, Executive's Salary under paragraph
no. 4(a)(i), above, or any Bonus awarded to
Executive under paragraph no. 4(b), above,
(provided that, in the case of any such
Bonus only, any conditions placed upon the
payment of same have been satisfied); or
(C) Employer's material diminution of the
aggregate of Executive's Benefits under
paragraph no. 4(a)(ii), above, or of the
aggregate of Executive's vacations, holidays
and sick leave under paragraph no. 4(c),
above;
(D) Employer's material reduction or diminution
of the conditions of Executive's employment
including, without limitation, Employer's
failure to provide Executive with office,
secretarial services and such other
facilities and support services as are
reasonably appropriate and necessary for the
performance of Executive's duties under this
Agreement.
(E) Any Change in Control as defined in
paragraph no. 8(a)(i), above.
(b) EVENTS: Executive's employment pursuant to this Agreement
shall terminate upon the first to occur of any of the
following events:
(i) TERMINATION BY EXECUTIVE: Executive may terminate his
employment pursuant to this Agreement for any reason
or "for good reason" (as defined above) upon prior
written notice to STT, and such termination shall be
effective upon the expiration of the time period in
such notice (or such earlier time as STT and
Executive may agree). For purposes of this paragraph,
the time period for said prior written notice shall
be six months, if said notice is given during the
first two years of the term of this Agreement, and
ninety days if given thereafter.
(ii) TERMINATION WITHOUT CAUSE BY STT: STT may terminate
Executive's employment pursuant to this Agreement
without cause upon prior written notice to Executive,
and such termination shall be effective upon the
expiration of the time period in such notice (or such
earlier time as STT and Executive may agree). For
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purposes of this paragraph, the time period for said
prior written notice shall be six months, if said
notice is given during the first two years of the
term of this Agreement, and ninety days if given
thereafter.
(iii) WITH CAUSE BY STT: STT may immediately terminate
Executive's employment pursuant to this Agreement for
cause upon written notice to Executive, and such
termination shall be effective upon the giving of
such notice.
(iv) TERMINATION ON ACCOUNT OF DEATH OR DISABILITY: Upon
the death or disability of Executive, Executive's
employment pursuant to this Agreement shall
terminate, and such termination shall be effective on
the date upon which the death or disability of
executive occurs.
(v) NON-RENEWAL OF TERM: Should Executive give STT
written notice at least thirty (30) days prior to the
expiration of either the orginal four-year term of
his employment or any of the subsequent, consecutive
one-year terms set forth in Section 2, above,
Executive's employment pursuant to this Agreement
shall terminate upon the last day of said term and
such termination shall be effective on said day.
(vi) "TERMINATION DATE" means the date upon which
Executive's termination becomes effective.
(c) TERMINATION PAY: Effective upon the termination of Executive's
employment pursuant to this Agreement, STT shall be obligated
to pay Executive (or in the event of his death, his estate, or
in the event a personal representative is appointed, his
personal representative) only such compensation as is provided
in this paragraph no. 8(c). ("Termination Pay"):
(i) COMPENSATION UPON TERMINATION BY EXECUTIVE OTHER THAN
FOR GOOD REASON: If Executive terminates his
employment pursuant to this Agreementother than for
good reason, then STT shall pay Executive all his
compensation owed him under Section 4, above, through
and including the Termination Date only.
(ii) COMPENSATION UPON TERMINATION BY STT WITHOUT CAUSE OR
BY EXECUTIVE FOR GOOD REASON: If STT terminates
Executive's employment pursuant to this Agreement
without cause, or if Executive terminates said
employment for good reason, then STT shall pay
Executive (A) his Salary for the remainder of the
Restricted Period, at the rate at which it was paid
at the Termination Date, and (B) an amount equal to
either (i) the amount of his target Bonus in respect
of the fiscal year in which the Termination Date
occurs, if the amount of such target Bonus has been
established as of the Termination Date, or (ii) if
the amount of such target Bonus has not been
determined as of the Termination Date, the amount of
the Bonus he received in respect of the immediately
preceding fiscal year, and STT shall continue to
provide Executive with the medical Benefits he
received as of the Termination Date through the last
day of the Restricted Period only.
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(iii) COMPENSATION UPON TERMINATION BY STT FOR CAUSE: If
STT terminates Executive's employment pursuant to
this Agreement for cause, then STT shall pay
Executive all his compensation owed him under Section
4, above, through and including the Termination Date
only.
(iv) COMPENSATION UPON TERMINATION BY DEATH OR DISABILITY:
If Executive's employment pursuant to this Agreement
is terminated by reason of the death or disability of
Executive, then STT shall pay Executive or his
estate, as appropriate, all his compensation owed him
under Section 4, above, through and including the
Termination Date only.
(V) COMPENSATION UPON NON-RENEWAL OF TERM: If Executive's
employment is terminated by non-renewal of its term
under paragraph no. 8(b)(v), above, STT shall, in its
sole discretion, determine whether Executive shall
thereafter be subject to the restrictions set forth
in paragraphs nos. 5(b), 5(c) and 5(d), above, for a
period of up to but not exceeding one (1) year from
the Termination Date. If STT determines that
Executive shall be subject to said restrictions, then
it shall pay him as if he were terminated without
good cause or for good reason as specified in
paragraph no. 8(b)(ii), above, during whatever period
STT determines said restrictions shall apply. If STT
determines that Executive shall not be subject to any
such restrictions, then it shall pay him all his
compensation owed him under Section 4, above, through
and including the Termination Date only.
(VI) AWARDS UNDER STT INCENTIVE PLANS: Executive shall
receive all rights and benefits granted to Executive
under STT's 1999 Omnibus Incentive Plan and any other
incentive plans of STT in which Executive
participates, and any agreements with Executive
pursuant thereto. The vesting and exercise of any
stock options and the forfeitability of any
stock-based grants held by Executive shall be
governed by the terms of such plans and the related
agreements between Executive and STT rather than this
Agreement.
(d) TIMING OF TERMINATION PAY:
(i) FOR GOOD REASON: If Executive terminates his
employment pursuant to this Agreement for Good Reason
(except for any Change in Control, in which case the
provisions of the following paragraph shall control)
or Executive's employment hereunder is terminated by
reason of death, then the full amount of any
Termination Pay owed to Executive or his estate
pursuant to the provisions of this Section shall
become due and payable upon the Termination Date.
Employer shall make payment at the time(s) and in the
manner(s) specified by Executive, or by the executor
of his estate, as appropriate, in written notice to
Employer. Executive, or the executor of his estate,
as appropriate, shall have the right to specify
whether payment of the Termination Pay shall be made
in whole or in part, and the specification of the
payment of any part shall not waive or limit
Executive's or his estate's right to receive the
remainder of the whole.
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(ii) FOR OTHER REASON: If Executive or STT terminates his
employment pursuant to this Agreement for any reason
other than than set forth in the preceding paragraph,
then any Termination Pay owed to Executive or to his
estate shall be paid in accordance with STT's normal
payroll schedule.
(e) RELEASE AND WAIVER OF OTHER CAUSES OF ACTION: Payment by STT
of the full amount of any Termination Pay owed Executive
pursuant to this Agreement shall be made promptly by STT upon
receipt of a full and final release and waiver by Executive,
in form and substance reasonably satisfactory to STT, of any
and every claim and cause of action which Executive may have
against STT, STOC, STP or any of their affiliates and
subsidiaries arising out of or relating to his employment
pursuant to this Agreement, whether such action is at equity
or common law or arises out of any federal, state or local
statute or regulation (including, but not limited to, the
termination of such employment. Further, as long as STT makes
timely payment of any portions or installments of Executive's
Termination Pay pursuant to the provisions of paragraph no.
8(d), above, Executive shall not commence any such claim or
action in any court or before any administrative body or
arbitration panel. However, nothing in this paragraph shall be
construed to limit Executive's right to bring an action
arising out of the breach of any provision of this Agreement
in any appropriate court or before any appropriate arbitration
panel, consistent with the terms otherwise set forth herein.
9. LITIGATION AND REGULATORY COOPERATION AFTER TERMINATION
(a) EXTENT OF COOPERATION: After the termination of Executive's
employment hereunder, Executive shall reasonably cooperate
with STT in the defense or prosecution of any claims or
actions now in existence or which may be brought in the future
against or on behalf of STT and which relate to events or
occurrences that transpired while Executive was employed by
STT, but if and only if such cooperation shall not materially
and adversely affect Executive or expose Executive to an
increased probability of civil or criminal litigation.
Executive's cooperation in connection with such claims or
action shall include being available to meet with counsel to
prepare for discovery or trial and to act as a witness on
behalf of STT at mutually convenient times. After Executive's
employment, Executive also shall cooperate fully with STT in
connection with any investigation or review of any federal,
state or local regulatory authority as any such investigation
or review relates to events or occurrences that transpired
while Executive was employed by STT, but if and only if such
cooperation shall not materially and adversely affect
Executive or expose Executive to an increased probability of
civil or criminal litigation. However, notwithstanding any of
the foregoing, nothing in this paragraph shall be construed to
require Executive to cooperate or provide any services to, on
or on behalf of STT in excess of four (4) hours in any one day
or for a total of more than twenty (20) hours, nor to require
Executive to travel more than fifty (50) miles from his home
in order to render such cooperation, nor to provide any
cooperation under this paragraph after seven (7) years from
Executive's Termination Date.
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(b) COMPENSATION FOR COOPERATION: STT shall compensate Executive for all
cooperation or other services rendered pursuant to this Section 9 by
paying him the greater of (i) a sum equal to all of his lost salary,
earnings and profits attributable to his provision of such cooperation
and services, or (ii) compensation on an hourly basis calculated at his
final hourly Salary rate. STT shall also reimburse Executive for all
costs and expenses incurred in connection with his performance under
this Section 9, including, without limitation, all reasonable
attorneys' fees and costs.
10. MISCELLANEOUS
(a) GOOD FAITH EFFORTS; FURTHER ASSURANCES; COOPERATION: The
parties shall in good faith undertake to perform their
agreements in this Agreement, to satisfy all conditions and to
cause the purposes of this Agreement to be accomplished
promptly in accordance with its terms.
(b) ARBITRATION: Any controversy or claim arising out of or
relating to this Agreement or the breach thereof not subject
to paragraph no. 7(b), above, shall be settled by arbitration
in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. Said arbitration shall be
before a panel of three arbitrators. Executive shall choose
one arbitrator, STT shall choose one arbitrator and the two
arbitrators so chosen shall choose the third arbitrator. Said
arbitration shall take place in the state of New Hampshire
within sixty days of notice by one party to the other, unless
they shall mutually agree to a longer or shorter time.
Judgment upon the award rendered by the panel may be entered
by any court of competent jurisdiction. Executive and STT
shall each pay fifty percent (50%) of the panel's fees. The
panel shall award reasonable interest, attorneys' fees and
costs to the prevailing party but shall have no power to award
punitive damages.
(c) NOTICES: Each notice, communication and delivery under this
Agreement:
(i) shall be made in writing signed by the party giving
it;
(ii) shall specify the section of this Agreement pursuant
to which it is given;
(iii) shall either be delivered in person, by any form of
United States Mail if a return receipt is provided
therewith, by telecopier or by a nationally
recognized next business day delivery service (such
as Federal Express, United Parcel Service, DHL or any
other similar delivery service provider);
(iv) shall be given to the address specified below;
(v) shall be deemed to be given:
(A) if delivered in person, on the date
delivered, or
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(B) if sent by telecopier, on the date of
confirmation of receipt, by telephone or
otherwise, or
(C) if sent by a nationally recognized next
business day courier service with all costs
paid, on the date of confirmation of
receipt.
The addresses are as follows:
If to Executive, to:
000 Xx 000 X
Xxx Xxxxxx, XX 00000
Telecopier:
Confirm:
If to STT:
Strategic Timber Trust, Inc.
0 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxx, Xxx Xxxxxxxxx 00000
Attn: Secretary
Telecopier: 603/526-7811
Confirm: 603/526-7800
Such notice shall be given to such other representatives or at
such other addresses as a party may furnish to the other
parties pursuant to the foregoing. If notice is given pursuant
to this Section of a permitted successor or assign of a party,
then notice shall thereafter be given as set forth above also
to such successor or assign of such party.
(d) COMPUTATION OF TIME: Whenever the last day for the exercise of
any privilege or the discharge of any duty under this
Agreement shall fall upon Saturday, Sunday or any public or
legal holiday, whether federal or of a state in which the
person or entity having such privilege or duty resides or has
its principal place of business, the party to this Agreement
having such privilege or duty shall have until 5:00 p.m.
(Eastern time) on the next succeeding regular business day to
exercise such privilege or to discharge such duty.
(e) ASSIGNMENT; SUCCESSOR IN INTEREST:
(i) BY STT: Except with the prior written consent of
Executive, no assignment, transfer or delegation by
STT of any of its rights and obligations under this
Agreement may be made to any other entity, except
that STT may make any such assignment, transfer or
delegation:
(A) to STOC or STP or any of STT's affiliates or
subsidiaries; and
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(B) if STT is merged into or acquired by another
business entity such that there is a Change
in Control, to the business entity into
which STT is merged or by which it is
acquired.
(ii) BY EXECUTIVE: Executive (or, under appropriate
circumstances, the executor of Executive's estate)
may transfer or assign any of his rights to receive
Executive's Total Compensation or any component of
Executive's Total Compensation, in whole or in part,
to any of Executive's heirs, devisees, legatees or
beneficiaries upon written notice to STT. No other
transfer or assignment may be made to any party by
Executive of any of his rights or obligations under
this Agreement.
(f) BINDING NATURE: This Agreement shall be binding upon the
parties to this Agreement and their respective legal
representatives, heirs, devisees, legatees, beneficiaries and
successors and assigns; shall inure to the benefit of the
parties to this Agreement and their respective permitted legal
representatives, heirs, devisees, legatees, beneficiaries and
other permitted successors and assigns (and to or for the
benefit of no other person or entity, whether an employee or
otherwise, whatsoever); and upon a permitted assignment, any
reference to a party to this Agreement shall also be a
reference to a permitted successor or assign.
(g) REMEDIES CUMULATIVE: The rights and remedies specified in any
provision of this Agreement shall be in addition to all other
rights and remedies a party may have under any other agreement
or applicable law, including any right to equitable relief and
any right to xxx for damages as a result of a breach of this
Agreement (whether or not it elects to terminate this
Agreement), and all such rights and remedies shall be
cumulative.
(h) DEFENSE/INDEMNIFICATION/HOLD HARMLESS: STT shall, to the
greatest extent allowed by applicable law, provide Executive a
defense, indemnify Executive and hold Executive harmless from
any civil or criminal claim, award or judgment which arises
out of Executive's acts performed or omissions committed in
the course of, or which Executive reasonably believed he
performed or committed in the course of, the performance of
his duties pursuant to this Agreement. However, nothing in
this paragraph shall require STT to provide Executive a
defense, indemnify Executive or hold Executive harmless from
any such claim, award or judgment which arises out of any such
act or omission which, at the time of same, Executive knew or
reasonably should have known constituted cause for termination
as set forth in paragraph no. 8(a)(iii), above.
(i) INSURANCE: STT shall cause Executive to appear as an
additional named insured on any policy of Directors' and
Officers' Liability Insurance which STT procures on behalf of
itself and/or on behalf of any of its Executive Officers.
Should Executive not appear as an additional named insured on
any such policy, STT shall be liable to Executive for the full
amount of insurance coverage which Executive would have had
pursuant to such policy had STT fulfilled its obligation under
this paragraph.
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(j) EXPENSES OF ENFORCING THIS AGREEMENT: Subject to the
provisions of paragraph no. 10(b), above, any expense incurred
in enforcing any or all of the provisions of this Agreement
shall be reimbursed to the prevailing party.
(k) INTEGRATION; AMENDMENT: This Agreement:
(i) supersedes all prior negotiations, agreements and
understandings between the parties to this Agreement
with respect to its subject matter, and
(ii) constitutes the entire agreement between the parties
to this Agreement with respect to its subject matter,
and
(iii) may not be altered or amended, nor may any material
provision be waived, except in writing signed by
Executive and STT.
(l) WAIVER: No waiver by any party of any provision (or of a
breach of any provision) of this Agreement, whether by conduct
or otherwise, in any one or more instances shall be deemed or
construed either as a further or continuing waiver of any such
provision or breach or as a waiver of any other provision (or
of a breach of any other provision) of this Agreement
(m) CONTROLLING LAW: This Agreement is governed by, and shall be
construed and enforced in accordance with, the laws of the
State of New Hampshire (except the laws of that jurisdiction
that would render such choice of laws ineffective).
(n) COPIES: This Agreement may be executed in two or more copies,
each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement or its terms to
produce or account for more than one of such copies.
(o) COUNTERPARTS: This Agreement may be executed in one or more
counterparts (one counterpart reflecting the signatures of all
parties), each of which shall be deemed to be an original, and
it shall not be necessary in making proof of this Agreement or
its terms to account for more than one of such counterparts.
This Agreement may be executed by each party upon a separate
copy, and one or more execution pages may be detached from one
copy of this Agreement and attached to another copy in order
to form one or more counterparts.
(p) RESIGNATIONS: Upon Executive's Termination Date, Executive
shall be deemed to have resigned from any and all offices he
may have held and from any employment he had with STT, STOC,
STP and any and all subsidiaries and affiliates of STT, STOC
or STP which were in existence on the Effective Date or which
came into existence during the term of this Agreement as set
forth in Section 2, above, up to and including the Termination
Date.
(q) INDEPENDENT: The agreements set forth above (or any part of
them) are, shall be deemed and shall be construed as separate
and independent agreements. If any such
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agreement or any part of such agreement is held invalid, void
or unenforceable by any court or arbitration panel of
competent jurisdiction, such holding shall in no way render
invalid, void or unenforceable any other part or provision
thereof or any separate agreement.
DULY EXECUTED and delivered by the parties to this Agreement as of the
dates set forth below.
Executive: /s/ C. Xxxxxx Xxxxx
--------------------------------------------
Name: C. Xxxxxx Xxxxx
Title: Chairman, President & CEO
Date: 3/20/99
STT: STRATEGIC TIMBER TRUST, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary and Vice President
Date: 3/24/99
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