EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of
October 1, 1997, by and among Xxxxxx Residential Properties, Inc.,
a Maryland corporation (the "Company"), the Company and Xxxxxxx X.
Xxxxxxx (the "Executive").
W I T N E S S E T H:
WHEREAS, Executive has served as the President of Concierge
Management Company ("CMC") since 1987 and, through such service,
has acquired special and unique knowledge, ability and expertise
and is expected to make major contributions to the short- and
long-term profitability, growth and financial strength of the
Company following the consummation of the Contribution (as
hereinafter defined);
WHEREAS, pursuant to that certain Contribution Agreement dated
as of May 21, 1997 (the "Contribution Agreement"), a subsidiary of
the Company will acquire all of the outstanding shares of capital
stock of Drever Partners, Inc., of which CMC is a wholly-owned
subsidiary (the "Contribution");
WHEREAS, the Company desires (a) to assure itself of both
present and future continuity of management, (b) to provide certain
minimum termination benefits for Executive, and (c) to provide
additional inducements for Executive to continue to remain in the
employ of the Company following the date hereof; and
WHEREAS, Executive is willing to render services to the
Company on the terms and subject to the conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
the agreements set forth herein, the Company and Executive agree as
follows:
1. Employment. Subject to the provisions of Section 3(c)
hereof, CMC agrees to and does hereby employ Executive to perform
the duties of Executive Vice President of Property Management of
the Company, and Executive accepts such employment, upon the terms
and conditions set forth herein.
2. Term. The term of this Agreement shall be the period
commencing as of the date set forth above and continuing thereafter
for a period of five years (as extended as hereinafter provided,
the "Term"); provided, however, that at the end of such five year
period and each anniversary date thereafter, the Term will
automatically be extended for an additional year unless, not later
than 60 days prior to the end of such five year period or any such
anniversary date, as the case may be, the Company or Executive
shall have given notice that the Company or Executive, as the case
may be, does not wish to have the Term extended.
3. Duties and Services.
(a) Subject to the provisions of Section 3(c) hereof,
Executive agrees to serve the Company as the Executive Vice
President of Property Management and to devote his full time,
attention and energies to the business of the Company and will
not, without the prior written consent of the Board of
Directors of the Company (the "Board"), be engaged (whether or
not during normal business hours) in any other business or
professional activity, whether or not such activities are
pursued for gain, profit or other pecuniary advantage.
Notwithstanding the foregoing, Executive will not be prevented
from (i) engaging in any civic or charitable activity for
which Executive receives no compensation or other pecuniary
advantage; (ii) investing his personal assets in businesses
which do not compete with CMC and/or the Company provided that
such investment will not require any services on the part of
Executive in the operation of the affairs of the businesses in
which investments are made and provided further that
Executive's participation in such businesses is solely that of
an investor; (iii) purchasing securities in any corporation
whose securities are publicly traded, provided that such
purchases will not result in Executive owning beneficially at
any time five percent (5%) or more of the equity securities of
any corporation engaged in a business competitive with that of
the Company; or (iv) participating in any other activity
approved in advance in writing by the Board. Executive also
agrees to perform from time to time such other executive
services as the Company shall reasonably request, provided
that such services shall be consistent with his position and
status as Executive Vice President of Property Management of
the Company. In attending to the business and affairs of the
Company, Executive agrees to serve the Company faithfully,
diligently and to the best of his ability.
(b) The duties and responsibilities of Executive shall
be commensurate with those of the executive vice president of
property management of any corporation similar to the Company.
(c) Notwithstanding anything in this Agreement to the
contrary, for a sixty (60) day period, commencing on the
fourth anniversary of the date hereof, Executive shall have
the right to resign his position as the Executive Vice
President of Property Management of the Company and elect (the
"Consultant Election") to be employed as a consultant to the
Company for the remainder of the Term by delivering written
notice of such election to the Company prior to the expiration
of such 60-day period. If Executive exercises the Consultant
Election, then for the remainder of the Term Executive will
hold himself ready to render to the Company and its
subsidiaries and affiliates such advisory and consulting
services as may be requested by the Company's Chief Executive
Officer, President or other authorized officer. In furnishing
any such consulting services, Executive will act as an
independent contractor and not as an employee of the Company.
As a consultant, Executive shall have no authority to act for
or bind the Company. The Company shall not exercise any
control over the execution of the services or manner of
performance of the consulting services provided by Executive
following the exercise of the Consultant Election, and
Executive, as a consultant, shall be responsible to the
Company only for the ultimate results required by the Company.
Subject to the provisions of Section 17 hereof, it is
understood that, following the exercise of the Consultant
Election, Executive will or may have other occupations or
employments during the Term, and in using the services of
Consultant hereunder, the Company will exercise due regard for
other commitments of Executive.
(d) During the Term and prior to the Consultant
Election, if any, Executive agrees to attend all meetings of
the Board without additional compensation.
4. Compensation.
(a) (i) As consideration for the services to be rendered
hereunder by Executive as Executive Vice President of
Property Management of the Company, the Company agrees to
pay Executive, and Executive agrees to accept, payable in
accordance with the Company's standard payroll practices
for executives, but payable in not less than bi-weekly
installments, compensation of Two Hundred Thousand
Dollars ($200,000.00) per annum or such greater amount as
may be determined from time to time by the Board pursuant
to performance reviews to be conducted on an annual basis
or such shorter time period as the Board shall deem
appropriate.
(ii) From and after the date Executive exercises the
Consultant Election, as consideration for the services to
be rendered hereunder by Executive as a consultant, the
Company agrees to pay Executive, and Executive agrees to
accept, payable in accordance with the Company's standard
payroll practices, but payable in not less than bi-weekly
installments, compensation of One Hundred Thousand
Dollars ($100,000.00) per annum. The amounts payable to
Executive pursuant to this Section 4(a) is referred to
together herein as the "Salary."
(b) At all times during the Term prior to the exercise
of the Consultant Election, Executive shall be eligible to
receive an annual incentive bonus as provided for in any
incentive plan of the Company, based on the level of
accomplishment of specific performance targets established by
the Board or any committee thereof, or such other bonus plans
as may be adopted by the Board from time to time in the
future. In addition, Executive shall participate in any
Company perquisite and supplemental benefit programs
established for the benefit of senior executives of the
Company.
5. Restricted Stock; Options.
(a) The Company will issue to Executive 10 year stock
options (the "Options"), covering an aggregate of 150,000
shares of common stock, par value $.01 per share, of the
Company (the "Common Stock"), issued under the Company's
Amended and Restated 1994 Stock Option Plan pursuant to an
option agreement to be dated as of the date hereof between the
Company and Executive, the form of which is attached hereto as
Exhibit A (the "Option Agreement). The exercise price for the
Options will be equal to the closing price per share of Common
Stock as reported on the New York Stock Exchange ("NYSE") on
the NYSE trading day immediately preceding the date hereof.
The exercise price shall be payable, and the options shall
vest, pursuant to the terms of the Option Agreement.
(b) The Company will issue to Executive shares of
restricted stock pursuant to the Company's Long-Term Incentive
Plan with an aggregate market value of $250,000 (the number of
whole shares to be issued will be determined by dividing
$250,000 by the closing price per share of Common Stock as
reported on the NYSE on the NYSE trading day immediately
preceding the date of issue) on each of (i) January 1, 1999 if
this Agreement is still in effect on such date and the closing
price per share of Common Stock as reported on the NYSE for
the NYSE trading day immediately preceding January 1, 1999 is
at least $30.00 and (ii) January 1, 2000 if this Agreement is
still in effect and the closing price per share of Common
Stock reported on the NYSE for the NYSE trading day
immediately preceding January 1, 2000 is at least $35.00. The
restrictions on transfer of the shares of restricted stock
issued pursuant to this Section 5(b) will lapse as to
one-third of such shares on the business day immediately
preceding the first, second and third anniversaries of the
date such shares are issued.
6. Termination for Cause.
(a) In the event that Executive shall be discharged for
"Cause" as provided in Section 6(b) hereof, all compensation
payable to Executive pursuant to Section 4 in respect of
periods after such discharge shall terminate immediately upon
such discharge, and the Company shall have no obligations with
respect thereto, nor shall the Company be obligated to pay
Executive severance compensation under Section 8 hereof.
(b) For the purposes of this Agreement, "Cause" shall
mean that, prior to any termination pursuant to Section 6(a)
hereof, Executive shall have committed:
(i) an intentional act or acts of fraud,
embezzlement or theft constituting a felony and resulting
or intended to result directly or indirectly in gain or
personal enrichment for Executive at the expense of the
Company; or
(ii) the continued, repeated, intentional and
willful refusal to perform the duties associated with
Executive's position with the Company, which is not cured
within 15 days following written notice to Executive.
For purposes of this Agreement, no act or failure to act on the
part of Executive shall be deemed "intentional" if it was due
primarily to an error in judgment or negligence, but shall be
deemed "intentional" only if done or omitted to be done by
Executive not in good faith and without reasonable belief that his
action or omission was in the best interest of the Company.
Executive shall not be deemed to have been terminated for
"Cause" hereunder unless and until there shall have been delivered
to Executive a copy of a resolution duly adopted by the affirmative
vote of not less than a majority of the Board then in office at a
meeting of the Board called and held for such purpose, after
reasonable notice to Executive and an opportunity for Executive,
together with his counsel (if Executive chooses to have counsel
present at such meeting), to be heard before the Board, finding
that, in the good faith opinion of the Board, Executive had
committed an act constituting "Cause" as herein defined and
specifying the particulars thereof in detail. Nothing herein will
limit the right of Executive or his beneficiaries to contest the
validity or propriety of any such determination.
7. Termination Without Cause. Either the Company or
Executive may terminate this Agreement without Cause, but only upon
delivery to the other party of a written notice of termination
specifying a termination date at least 30 days, but not more than
60 days, after the date of delivery of such notice. Executive may
elect to terminate this Agreement under this Section 7 at any time
prior to receiving the Board resolution described in Section 6(b)
hereof notwithstanding that the Company claims a right to terminate
Executive under Section 6(a) hereof and such election by Executive
shall be binding on both parties.
8. Termination Compensation.
(a) If, during the Term, this Agreement is terminated
(i) for any reason other than (A) pursuant to Section 6(a)
hereof, (B) by reason of death, (C) by reason of "Disability,"
or (D) by notice by Executive pursuant to Section 7 hereof or
(ii) by Executive due to "Constructive Discharge," then
Executive shall receive termination pay in an amount equal to
the highest annualized rate of Executive's Salary prior to the
date of termination (x) under Section 4(a)(i) hereof if
Executive is the Executive Vice President of Property
Management of the Company on the date of termination or (y)
under Section 4(a)(ii) hereof if Executive has exercised the
Consultant Election prior to the date of termination, payable
in cash within five business days of the date of termination.
(b) For the purposes of this Agreement, "Constructive
Discharge" shall mean:
(i) any reduction in Salary;
(ii) a material reduction in Executive's job
function, authority, duties or responsibilities, or a
similar change in Executive's reporting relationships;
(iii) a required relocation of Executive of more than
35 miles from Executive's current job location;
(iv) any breach of any of the terms of this
Agreement by the Company which is not cured within 15
days following written notice thereof by Executive to the
Company; or
(v) in the event of a "Change in Control" (as
hereinafter defined) Executive has reasonably determined
that, as a result of a change in circumstances following
the Change in Control of the Company that significantly
affect his relationship with the Company, he is unable to
exercise the authority, duties and responsibilities
contemplated by Section 3 hereof;
provided, however, that the term "Constructive Discharge" shall not
include a specific event described in the preceding clause (i),
(ii), (iii), (iv) or (v) unless Executive actually terminates his
employment with CMC within 60 days after the occurrence of such
event.
(c) The amount of compensation payable pursuant to this
Section 8 is not subject to any deduction (except for
withholding taxes), reduction, offset or counterclaim, and the
Company may not give advance notice of termination in lieu of
the payment provided for in this Section 8.
9. Termination in the Event of Death. This Agreement shall
terminate automatically upon the death of Executive. In such
event, the Company shall pay to Executive's legal representative
only the base salary due to Executive up to the date of termination
as well as incentive bonuses, which have accrued through the date
of termination, and benefits payable pursuant to this Agreement.
10. Termination in the Event of Disability. If during the
Term, Executive becomes physically or mentally disabled so as to
become unable, for a period of more than six (6) consecutive
months, to perform his duties hereunder on substantially a full
time basis ("Disability"), the Company may at its option terminate
this Agreement upon not less than thirty (30) days' written notice.
In the event of such termination, Executive shall be entitled to
continue to receive his base salary and benefits, excluding any
incentive bonuses, for a period equal to the lesser of (a)
twenty-four (24) months from the date of termination and (b) the
remainder of the Term, and then shall receive such benefits as are
available to senior executives of the Company under any applicable
disability plan.
11. Change in Control of the Company.
(a) If a Change in Control (as hereinafter defined) of
the Company occurs prior to the scheduled expiration of the
Term and within three years after the Change in Control of the
Company (i) Executive is terminated by the Company for reasons
other than (A) death, (B) Disability, or (C) Cause or (ii)
Executive terminates his employment as a result of
Construction Discharge, the Company, within 30 days of
Executive's termination of employment, will pay to Executive,
in lieu of any severance obligation under Section 8 hereof, an
amount equal to 2.99 times Executive's compensation, which,
for purposes of this Section 11, shall mean an amount equal to
the highest annualized rate of Executive's Salary prior to the
date of termination (x) under Section 4(a)(i) hereof if
Executive is Executive Vice President of Property Management
at the time of the Change in Control or (y) under Section
4(a)(ii) hereof if Executive shall have exercised the
Consultant Election prior to the Change in Control, plus
Executive's cash bonus for the year immediately prior to such
termination.
(b) For purposes of this Agreement, a "Change in
Control" shall have occurred if at any time during the Term
any of the following events occurs:
(i) The Company is merged, consolidated or
reorganized into or with another corporation or
other legal person and as a result of such merger,
consolidation or reorganization less than a
majority of the combined voting power of the
then-outstanding securities of such corporation or
person immediately after such transaction are held
in the aggregate by the holders of Voting Stock (as
hereinafter defined) of the Company immediately
prior to such transaction;
(ii) The Company sells all or
substantially all of its assets to any other
corporation or other legal person, less than a
majority of the combined voting power of the
then-outstanding voting securities of which
are held in the aggregate by the holders of
Voting Stock of the Company immediately prior
to such sale;
(iii) There is a report filed on
Schedule 13D or Schedule 14D-1 (or any
successor schedule, form or report), each as
promulgated pursuant to the Securities
Exchange Act of 1934, as amended (the
"Exchange Act"), disclosing that any person
(as the term "person" is used in
Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act) has become the beneficial owner
(as the term "beneficial owner" is defined
under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act)
of securities representing 25% or more of the
combined voting power of the then-outstanding
securities of the Company entitled to vote
generally in the election of directors of the
Company ("Voting Stock"), other than as a
result of the transactions contemplated by the
Contribution Agreement and the Exchange
Agreement, dated as of May 21, 1997 by and
among the Company, Drever and the other
parties named therein;
(iv) The Company files a report or proxy
statement with the Securities and Exchange
Commission pursuant to the Exchange Act
disclosing in response to Form 8-K or
Schedule 14A (or any successor schedule, form
or report or item therein) that a change in
control of the Company has or may have
occurred or will or may occur in the future
pursuant to any then-existing contract or
transaction; or
(v) If during any period of two
consecutive years, individuals who at the
beginning of any such period constitute the
directors of the Company cease for any reason
to constitute at least a majority thereof
unless the election, or the nomination for
election by the Company's stockholders, of
each director of the Company first elected
during such period was approved by a vote of
at least two-thirds of the directors of the
Company then still in office who were
directors of the Company at the beginning of
any such period.
Notwithstanding the foregoing provisions of Section 11(b)(iii) or
11(b)(iv) hereof, a "Change in Control" shall not be deemed to have
occurred for purposes of this Agreement solely because the Company,
an entity in which the Company directly or indirectly beneficially
owns 50% or more of the voting securities of such entity, any
Company-sponsored employee stock ownership plan or any other
employee benefit plan of the Company either files or becomes
obligated to file a report or a proxy statement under or in
response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A
(or any successor schedule, form or report or item therein) under
the Exchange Act, disclosing beneficial ownership by it of shares
of voting securities of the Company, whether in excess of 25% or
otherwise, or because the Company, reports that a change in control
of the Company has or may have occurred or will or may occur in the
future by reason of such beneficial ownership.
12. Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event that it shall be determined (as
hereafter provided) that any payment or distribution by the
CMC and/or Company to or for the benefit of Executive, whether
paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise pursuant to or by
reason of any other agreement, policy, plan, program or
arrangement (a "Payment"), would be subject to the excise tax
imposed by Section 4999 (or any successor provision thereto)
of the Internal Revenue Code of 1986, as amended (the "Code"),
or any interest or penalties with respect to such excise tax
(such excise tax, together with any such interest and
penalties, are hereafter collectively referred to as the
"Excise Tax"), then Executive shall be entitled to receive an
additional payment or payments (a "Gross-Up Payment") in an
amount such that, after payment by Executive of all taxes
(including any interest or penalties imposed with respect to
such taxes), including any Excise Tax imposed upon the
Gross-Up Payment, Executive retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Payments.
(b) All determinations required to be made under this
Section 12, including whether an Excise Tax is payable by
Executive and the amount of such Excise Tax and whether a
Gross-Up Payment is required and the amount of such Gross-Up
Payment, shall be made by a nationally recognized firm of
certified public accountants (the "Accounting Firm") selected
by Executive in his sole discretion. Executive shall direct
the Accounting Firm to submit its determination and detailed
supporting calculations to the Company, the Company and
Executive within 15 calendar days after the termination date,
if applicable, or such earlier time or times as may be
requested by the Company or Executive. If the Accounting Firm
determines that any Excise Tax is payable by Executive, the
Company shall pay the required Gross-Up Payment to Executive
within five business days after receipt of such determination
and calculations. If the Accounting Firm determines that no
Excise Tax is payable by Executive, it shall, at the same time
as it makes such determination, furnish Executive with an
opinion that he has substantial authority not to report any
Excise Tax on his federal income tax return. Any
determination by the Accounting Firm as to the amount of the
Gross-Up Payment shall be binding upon the Company and
Executive. As a result of the uncertainty in the application
of Section 4999 of the Code (or any successor provision
thereto) at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should
have been made (an "Underpayment"), consistent with the
calculations required to be made hereunder. In the event that
Executive is required to make a payment of any Excise Tax,
Executive shall direct the Accounting Firm to determine the
amount of the Underpayment that has occurred and to submit its
determination and detailed supporting calculations to the
Company and Executive as promptly as possible. Any such
Underpayment shall be promptly paid by the Company to, or for
the benefit of, Executive within five business days after
receipt of such determination and calculations.
(c) The Company and Executive shall provide the
Accounting Firm access to and copies of any books, records and
documents in the possession of CMC, the Company or Executive,
as the case may be, reasonably requested by the Accounting
Firm, and otherwise cooperate with the Accounting Firm in
connection with the preparation and issuance of the
determination contemplated by Section 12(b) hereof.
(d) The fees and expenses of the Accounting Firm for its
services in connection with the determinations and
calculations contemplated by Section 12(b) hereof shall be
borne by the Company. If such fees and expenses are initially
paid by Executive, the Company shall reimburse Executive the
full amount of such fees and expenses within five business
days after receipt from Executive of a statement therefor and
reasonable evidence of his payment thereof.
13. Life Insurance. At all times during the Term prior to
the exercise of the Consultant Election, the Company shall, at its
sole expense, obtain and maintain in full force and effect life
insurance on Executive's life in an amount equal to twice
Executive's Salary, payable to a beneficiary of Executive's choice.
14. Other Benefits.
(a) Except as expressly provided herein, this Agreement
shall not:
(i) be deemed to limit or affect the right of
Executive to receive other forms of additional
compensation or to participate in any insurance,
retirement, disability, profit-sharing, stock purchase,
stock option, stock appreciation rights, cash or stock
bonus or other plan or arrangement or in any other
benefits now or hereafter provided by the Company or any
of the Company's affiliated companies for its employees;
or
(ii) be deemed to be a waiver by Executive of any
vested rights which Executive may have or may hereafter
acquire under any employee benefit plan or arrangement of
the Company or any of the Company's affiliated companies.
(b) It is contemplated that, in connection with his
services hereunder, Executive may be required to incur
reasonable business, entertainment, telephone and travel
expenses. The Company agrees to reimburse Executive in full
for all reasonable and necessary business, entertainment,
telephone and other related expenses, including travel
expenses, incurred or expended by him incident to the
performance of his duties hereunder, upon submission by
Executive to the Company of such vouchers or expense
statements satisfactorily evidencing such expenses as may be
reasonably requested by the Company.
(c) It is understood and agreed by the Company that
during the term of Executive's employment hereunder as
Executive Vice President of Property Management of the
Company, he shall be entitled to annual paid vacations (taken
consecutively or in segments), the length of which shall be
consistent with the effective discharge of Executive's duties
and the general customs and practices of the Company
applicable to its executive officers.
15. No Mitigation Obligation. The Company hereby
acknowledges that it will be difficult and may be impossible
(a) for Executive to find reasonably comparable employment
following the date of termination, and (b) to measure the amount of
damages which Executive may suffer as a result of termination of
employment hereunder. Accordingly, the payment of the termination
compensation by the Company to Executive in accordance with the
terms of this Agreement is hereby acknowledged by the Company to be
reasonable and will be liquidated damages, and Executive will not
be required to mitigate the amount of any payment provided for in
this Agreement by seeking other employment or otherwise, nor will
any profits, income, earnings or other benefits from any source
whatsoever create any mitigation, offset, reduction or any other
obligation on the part of Executive hereunder or otherwise.
16. Confidentiality.
(a) Recognizing that the knowledge and information about
the business methods, systems, plans and policies of the
Company and of its affiliated companies which Executive has
heretofore and shall hereafter receive, obtain or establish as
an employee of the Company are valuable and unique assets of
the Company and its affiliated companies, Executive agrees
that he shall not (otherwise than pursuant to his duties
hereunder) disclose, without the written consent of the
Company, any confidential knowledge or information pertaining
to the Company or its affiliated companies, the Company, or
their business, personnel or plans, to any person, firm,
corporation or other entity, which would result in any
material harm or damage to the Company, its business or
prospects, for any reason or purpose whatsoever, unless
required by law or legal process. In the event Executive is
required by law or legal process to provide documents or
disclose information, he shall take all reasonable steps to
maintain confidentiality of documents and information,
including notifying the Company and giving it an opportunity
to seek a protective order, at its sole cost and expense.
(b) The provisions of this Section 16 shall survive the
expiration or termination of this Agreement, without regard to
the reason therefor, for a period of two years from the
earlier of (i) expiration of the Term or (ii) the date of
termination.
17. Non-Competition.
(a) Except as otherwise provided in Section 3(a) hereof,
during the Term and any period during which Executive receives
any severance payments hereunder (the "Noncompetition
Period"), Executive shall not, directly or indirectly, either
for himself or any other person, own, manage, control,
participate in, invest in, permit his name to be used by, act
as consultant or advisor to, render services for (alone or in
association with any individual, entity or other business
organization) or otherwise assist in any manner any individual
or entity that engages in or owns, invests in, manages or
controls any venture or enterprise engaged in (each, a
"Competitive Activity") the ownership, management, acquisition
or development of multifamily residential properties.
Executive will not in any manner induce, attempt to
induce or assist others to induce or attempt to induce any
investor, client or tenant of the Company or any of its
affiliated companies, including, without limitation, CMC, to
terminate its, his or her association with the Company or any
of its affiliated companies, including, without limitation,
CMC, or do anything to interfere with the relationship between
the Company or any of its affiliated companies, including,
without limitation, CMC, and any of its customers, clients,
tenants or persons or concerns dealing with the Company or any
of its affiliated companies, including, without limitation,
CMC, during the Noncompetition Period. Executive shall not,
without the prior consent of a majority of the Company's
independent directors, solicit, hire away or employ any person
who is an employee of the Company or any of its affiliated
companies, including, without limitation, CMC, during the
Noncompetition Period.
(b) In the event that any restriction contained in this
Section 17 shall be held too broad to allow enforcement of
such restriction to its full extent, then such restriction
shall be enforced to the maximum extent permitted by law, and
Executive hereby consents and agrees that such scope may be
judicially modified accordingly in any proceeding brought to
enforce such restrictions.
(c) Executive acknowledges and agrees that the Company's
remedy at law for any breach of his obligations under this
Section 17 may be inadequate, and agrees and consents that
temporary and/or permanent injunctive relief may be entered
enjoining him from breaching this Agreement and further agrees
that any proceeding which may be brought to enforce any
provision of this Section 17 without being requested to prove
actual damages as a result of the premature breach of this
Agreement.
18. Legal Fees and Expenses. It is the intent of the Company
that Executive not be required to incur legal fees and the related
expenses associated with the interpretation, enforcement or defense
of Executive's rights under this Agreement by litigation or
otherwise because the cost and expense thereof would substantially
detract from the benefits intended to be extended to Executive
hereunder. Accordingly, if it should appear to Executive that the
Company has failed to comply with any of its obligations under this
Agreement or in the event that the Company or any other person
takes or threatens to take any action to declare this Agreement
void or unenforceable or in any way reduce the possibility of
collecting the amounts due hereunder, or institutes any litigation
or other action or proceeding designed to deny, or to recover from,
Executive any payments or benefits provided hereunder, the Company
irrevocably authorizes Executive from time to time to retain
counsel of Executive's choice, at the expense of the Company as
hereafter provided, to advise and represent Executive in connection
with any such interpretation, enforcement or defense, including,
without limitation, the initiation or defense of any litigation or
other legal action, whether by or against the Company or any
director, officer, stockholder or other person affiliated with the
Company, in any jurisdiction. The Company will pay and be solely
financially responsible for any and all attorneys' and related fees
and expenses incurred by Executive in connection with any of the
foregoing, except only in the event of litigation where the Company
fully and finally prevails on all causes of action.
19. Withholding of Taxes. The Company may withhold from any
amounts payable under this Agreement all federal, state, city or
other taxes as CMC and/or the Company is required to withhold
pursuant to any law or government regulation or ruling.
20. Successors and Binding Agreement.
(a) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of
the business or assets of the Company, by agreement in form
and substance satisfactory to Executive, expressly to assume
and agree to perform this Agreement in the same manner and to
the same extent the Company would be required to perform if no
such succession had taken place. This Agreement will be
binding upon and inure to the benefit of the Company and any
successor to the Company, including, without limitation, any
persons acquiring directly or indirectly all or substantially
all of the business or assets of the Company whether by
purchase, merger, consolidation, reorganization or otherwise
(and such successor shall thereafter be deemed the "Company"
for the purposes of this Agreement), but will not otherwise be
assignable, transferable or delegable by the Company.
(b) This Agreement will inure to the benefit of and be
enforceable by Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees and
legatees.
(c) This Agreement is personal in nature and neither of
the parties hereto shall, without the consent of the other,
assign, transfer or delegate this Agreement or any rights or
obligations hereunder except as expressly provided in
Sections 20(a) and 20(b) hereof and with respect to the
Company's obligation to pay legal fees and expenses under
Section 18 hereof. Without limiting the generality or effect
of the foregoing, Executive's right to receive payments
hereunder will not be assignable, transferable or delegable,
whether by pledge, creation of a security interest or
otherwise, other than by a transfer by Executive's will or by
the laws of descent and distribution and, in the event of any
attempted assignment or transfer contrary to this
Section 20(c), the Company shall have no liability to pay any
amount so attempted to be assigned, transferred or delegated,
except with respect to legal fees and expenses, as and to the
extent provided in Section 18 hereof.
21. Notices. For all purposes of this Agreement, all
communications, including, without limitation, notices, consents,
requests or approvals, required or permitted to be given hereunder
will be in writing and will be deemed to have been duly given when
hand delivered or dispatched by electronic facsimile transmission
(with receipt thereof orally confirmed), or five business days
after having been mailed by United States registered or certified
mail, return receipt requested, postage prepaid, or three business
days after having been sent by a nationally recognized overnight
courier service such as Federal Express, UPS or Purolator,
addressed to the Company (to the attention of the Secretary of the
Company) at the address set forth on the signature pages of this
Agreement and to Executive at the address set forth on the
signature pages of this Agreement, or to such other address as
either party may have furnished to the other in writing and in
accordance herewith, except that notices of changes of address
shall be effective only upon receipt.
22. Governing Law. The validity, interpretation,
construction and performance of this Agreement will be governed by
and construed in accordance with the substantive laws of the State
of Texas, without giving effect to the principles of conflict of
laws of such State.
23. Validity. If any provision of this Agreement or the
application of any provision hereof to any person or circumstances
is held invalid, unenforceable or otherwise illegal, the remainder
of this Agreement and the application of such provision to any
other person or circumstances will not be affected, and the
provision so held to be invalid, unenforceable or otherwise illegal
will be reformed to the extent (and only to the extent) necessary
to make it enforceable, valid or legal.
24. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by Executive and the
Company. No waiver by either party hereto at any time of any
breach by the other party hereto or compliance with any condition
or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No
agreements or representations, oral or otherwise, expressed or
implied with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement.
Except as otherwise identified, references to Sections are
references to Sections of this Agreement.
25. Survival of Certain Provisions. Notwithstanding anything
herein to the contrary, the obligations of the Company under
Sections 8, 10, 11, 12, 14 and 18 hereof, to the extent applicable,
shall remain operative and in full force and effect regardless of
the expiration, for any reason, of the Term.
26. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original
but all of which together will constitute one and the same
agreement.
27. Warranty. Executive warrants and represents that he is
not a party to any agreement, contract or understanding, whether of
employment or otherwise, which would in any way restrict or
prohibit him from undertaking or performing employment in
accordance with the terms and conditions of this Agreement.
28. Board Approval. By executing this Agreement, the Company
acknowledges that this Agreement has been reviewed and approved by
the Compensation Committee of the Board.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement.
XXXXXX RESIDENTIAL PROPERTIES, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxx
Chief Executive Officer,
President and
Chief Acquisitions Officer
Address:
One Lincoln Centre
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Individually
Address:
DB972160078
111797 v8
111:14199-27
