EXHIBIT 10.10
AMENDED AND RESTATED
EMPLOYMENT AND NONCOMPETITION AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AND NONCOMPETITION AGREEMENT
("Agreement") is made as of the 30th day of September, 1998 between Xxxxxx
Xxxxxx ("Executive") and XX Xxxxx Realty Corp., a Maryland corporation with its
principal place of business at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Employer"), and amends and completely restates the Employment and
Noncompetition Agreement made as of the 20th day of August, 1997.
1. TERM. The term of this Agreement shall commence on the 1st day of
October, 1998 and, unless earlier terminated as provided herein, shall terminate
on the third anniversary of such date (the "Current Term"); PROVIDED, HOWEVER,
that Section 8 hereof shall survive the termination of this Agreement as
provided therein. The Current Term shall automatically be extended for
successive one-year periods (each a "Renewal Term"), unless either party shall
notify the other in writing at least six (6) months prior to the expiration of
the Current Term or the applicable Renewal Term of its intention not to renew
such Term. The period of Executive's employment hereunder consisting of the
Current Term and all Renewal Terms, if any, is herein referred to as the
"Employment Period"
2. EMPLOYMENT AND DUTIES.
(a) DUTIES. During the Employment Period, Executive shall be employed
in the business of the Employer and its affiliates. Executive shall
serve the Employer as a senior corporate executive with the title
Executive Vice President-Leasing of the Employer. Executive's duties
and authority shall be as set forth in the By-laws of the Employer and
as otherwise established from time to time by the Board of Directors
of the Employer, and shall be commensurate with his titles and
positions with the Employer.
(b) BEST EFFORTS. Executive agrees to his employment as described in
this Section 2 and agrees to devote substantially all of his business
time and efforts to the performance of his duties under this
Agreement, except as otherwise approved by the Board of Directors of
the Employer; PROVIDED, HOWEVER, that nothing herein shall be
interpreted to preclude Executive from (i) participating as an officer
or director of, or advisor to, any charitable or other tax exempt
organization or otherwise engaging in charitable, fraternal or trade
group activities, (ii) acting as an officer of any subsidiary of the
Company, or (iii) investing his assets as a passive investor in other
entities or business ventures, provided that he performs no management
or similar role with respect to such entities or ventures and such
investment does not violate Section 8 hereof.
(c) TRAVEL. In performing his duties hereunder, Executive shall be
available for all reasonable travel as the needs of the Employer's
business may require. Executive shall be based in the metropolitan
area of New York City.
3. COMPENSATION AND BENEFITS. In consideration of Executive's services
hereunder, the Employer shall compensate Executive as provided in this
Section 3.
(a) BASE SALARY. The Employer shall pay Executive an aggregate annual
salary at the rate of $175,000 per annum during the Employment Period
("Base Salary"), subject to applicable withholding. Base Salary shall
be payable in accordance with the Employer's normal business
practices, but in no event less frequently than monthly. Executive's
Base Salary shall be reviewed no less frequently than annually by the
Employer and may be increased, but not decreased, by the Employer
during the Employment Period.
(b) INCENTIVE COMPENSATION. In addition to the Base Salary payable to
Executive pursuant to Section 3(a), during the Employment Period,
Executive shall be eligible to participate in any incentive
compensation plans in effect with respect to senior executive officers
of the Employer, subject to Executive's compliance with such criteria
as the Employer's Board of Directors, in its sole discretion, may
establish for Executive's participation in such plans from time to
time. Any awards to Executive under such plans will be established by
the Employer's Board of Directors, or a committee thereof, in its sole
discretion.
(c) STOCK OPTIONS. During the Employment Period, Executive shall be
eligible to participate in employee stock option plans established
from time to time for the benefit of senior executive officers and
other employees of the Employer in accordance with the terms and
conditions of such plans. All decisions regarding awards to Executive
under the Employer's stock option plans shall be made in the sole
discretion of the Employer's Board of Directors, or a committee
thereof.
(d) EXPENSES. Executive shall be reimbursed for all reasonable
business related expenses incurred by Executive at the request of or
on behalf of the Employer, provided that such expenses are incurred
and accounted for in accordance with the policies and procedures
established by the Employer.
(e) MEDICAL INSURANCE. During the Employment Period, Executive and
Executive's immediate family shall be entitled to participate in such
medical benefit plan as the Employer shall maintain from time to time
for the benefit of senior executive officers of the Employer and their
families, on the terms and subject to the conditions set forth in such
plan. Nothing in this section shall limit the Employer's right to
change, modify or terminate any benefit plan or program as it sees fit
from time to time in the normal course of business.
(f) VACATIONS. Executive shall be entitled to reasonable paid
vacations in accordance with the then regular procedures of the
Employer governing senior executive officers.
(g) OTHER BENEFITS. During the Employment Period, the Employer shall
provide to Executive such other benefits, including sick leave and the
right to
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participate in such retirement or pension plans, as are made generally
available to senior executive officers and employees of the Employer
from time to time.
4. INDEMNIFICATION AND LIABILITY INSURANCE. The Employer agrees to
indemnify Executive to the extent permitted by applicable law with respect to
any actions commenced against Executive in his capacity as an officer or
director, or former officer or director, of the Employer or any affiliate
thereof for which he may serve in such capacity. The Employer also agrees to use
its best efforts to secure and maintain officers and directors liability
insurance providing coverage for Executive.
5. EMPLOYER'S POLICIES. Executive agrees to observe and comply with the
rules and regulations of the Employer as adopted by its Board of Directors from
time to time regarding the performance of his duties and to carry out and
perform orders, directions and policies communicated to him from time to time by
the Employer's Board of Directors.
6. TERMINATION. The Executive's employment hereunder may be terminated
under the following circumstances:
(a) TERMINATION BY THE EMPLOYER.
(i) DEATH. The Executive's employment hereunder shall
terminate upon his death.
(ii) DISABILITY. If, in the reasonable good faith determination
of the Board of Directors, as a result of the Executive's incapacity
due to physical or mental illness or disability, the Executive shall
have been incapable of performing his duties hereunder even with a
reasonable accommodation on a full-time basis for the entire period of
three consecutive months or any 90 days in a 180-day period, and
within 30 days after written Notice of Termination (as defined in
Section 6(c)) is given he shall not have returned to the performance
of his duties hereunder on a full-time basis, the Employer may
terminate the Executive's employment hereunder.
(iii) CAUSE. The Employer may terminate the Executive's
employment hereunder for Cause, subject to the severance provisions
specifically set forth in Section 7(b) and the arbitration provisions
specifically set forth in Section 7(e). For purposes of the Agreement,
"Cause" shall mean that the Board of Directors of the Employer
concludes, in good faith and after reasonable investigation, that:
(A) the Executive engaged in conduct which is a felony
under the laws of the United States or any state or political
subdivision thereof;
(B) the Executive engaged in conduct constituting breach
of fiduciary duty, gross negligence or willful misconduct
relating to the Employer, fraud or dishonesty or willful or
material misrepresentation relating to the business of the
Employer;
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(C) the Executive breached his obligations or covenants
under Section 8 of this Agreement in any material respect; or
(D) the Executive failed to perform his duties hereunder
in a manner and at a level reasonably satisfactory to the
Employer more than 15 days after receiving notice from the
Employer, which notice specifically identifies the manner in
which he has failed so to perform.
(iv) WITHOUT CAUSE. Executive's employment hereunder may be
terminated by the Employer at any time with or without Cause (as
defined in Section 6(a)(iii) above), by a majority vote of all of the
members of the Board of Directors of the Employer upon written notice
to Executive, subject only to the severance provisions specifically
set forth in Section 7(a) herein.
(b) TERMINATION BY THE EXECUTIVE.
(i) DISABILITY. The Executive may terminate his employment
hereunder for Disability within the meaning of Section 6(a)(ii) above.
(ii) WITH GOOD REASON. Executive's employment hereunder may be
terminated by Executive with Good Reason effective immediately by
written notice to the Board of Directors of the Employer. For purposes
of this Agreement, with "Good Reason" shall mean: (i) a failure of the
Board of Directors of the Employer to elect Executive to offices with
the same or substantially the same duties and responsibilities as set
forth in Section 2; (ii) a material failure by the Employer to comply
with the provisions of Section 3 or a material breach by the Employer
of any other provision of this Agreement which has not been cured
within thirty (30) days after notice of noncompliance, (specifying the
nature of the noncompliance) has been given by the Executive to the
Employer; or (iii) a Force Out (as such term is defined in Section
6(d) below). Notwithstanding any provision of this Agreement to the
contrary, with "Good Reason" shall not include any assignment of
Executive to a position or office that has new or different duties,
provided that such position or office is principally related to
leasing, has a substantially similar level of responsibility to
Executive's immediately preceding position or office and is
commensurate with Executive's education, skills and experience.
(c) NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Employer or by the Executive (other than termination
pursuant to subsection (a)(1) hereof) shall be communicated by written
Notice of Termination to the other party hereto in accordance with
Section 11 of this Agreement. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the
specific termination provision in this Agreement relied upon and, as
applicable, shall set forth in reasonable detail the fact and
circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated.
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(d) DEFINITIONS. The following terms shall be defined as set forth
below.
(i) A "Change-in-Control" shall be deemed to have occurred
after the effective date of the initial public offering of the
Employer's Common Stock ("IPO") if:
(A) any Person, together with all "affiliates" and
"associates" (as such terms are defined in Rule 12b-2 under the
Securities Exchange Act of 1934 (the "Exchange Act")) of such
Person, shall become the "beneficial owner" (as such term is
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Employer representing 40% or
more of either (A) the combined voting power of the Employer's
then outstanding securities having the right to vote in an
election of the Employer's Board of Directors ("Voting
Securities") or (B) the then outstanding shares of all classes of
stock of the Employer (in either such case other than as a result
of the acquisition of securities directly from the Employer); or
(B) individuals who, as of the date of the closing of
the IPO, constitute the Employer's Board of Directors (the
"Incumbent Directors") cease for any reason, including, without
limitation, as a result of a tender offer, proxy contest, merger
or similar transaction, to constitute at least a majority of the
Employer's Board of Directors, provided that any person becoming
a director of the Employer subsequent to the closing of the IPO
whose election or nomination for election was approved by a vote
of at least a majority of the Incumbent Directors shall, for
purposes of this Agreement, be considered an Incumbent Director;
or
(C) the stockholders of the Employer shall approve (1)
any consolidation or merger of the Employer or any subsidiary
where the stockholders of the Employer, immediately prior to the
consolidation or merger, would not, immediately after the
consolidation or merger, beneficially own (as such term is
defined in Rule l3d-3 under the Exchange Act), directly or
indirectly, shares representing in the aggregate at least 50% of
the voting shares of the corporation issuing cash or securities
in the consolidation or merger (or of its ultimate parent
corporation, if any), (2) any sale, lease, exchange or other
transfer (in one transaction or a series of transactions
contemplated or arranged by any party as a single plan) of all or
substantially all of the assets of the Employer or (3) any plan
or proposal for the liquidation or dissolution of the Employer;
Notwithstanding the foregoing, a "Change-in-Control" shall not be
deemed to have occurred for purposes of the foregoing clause (A)
solely as the result of an acquisition of securities by the Employer
which, by reducing the number of shares of stock or other Voting
Securities outstanding, increases (x) the proportionate number of
shares of stock of the Employer beneficially owned by
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any Person to 40% or more of the shares of stock then outstanding or
(y) the proportionate voting power represented by the Voting
Securities beneficially owned by any Person to 40% or more of the
combined voting power of all then outstanding Voting Securities;
PROVIDED, HOWEVER, that if any Person referred to in clause (x) or (y)
of this sentence shall thereafter become the beneficial owner of any
additional stock of the Employer or other Voting Securities (other
than pursuant to a share split, stock dividend, or similar
transaction), then a "Change-in-Control" shall be deemed to have
occurred for purposes of the foregoing clause (A). In addition,
notwithstanding the foregoing, a "Change-in-Control" shall not be
deemed to have occurred for purposes of the foregoing clause (A) if
(i) Xxxxxxx X. Xxxxx continues to serve as Chief Executive Officer or
the equivalent of any surviving entity, and (ii) the proportionate
number of shares of stock of the Employer beneficially owned, or the
proportionate voting power represented by the Voting Securities
beneficially owned, by any Person described in such clause (A) does
not exceed 49%.
(ii) A "Force Out" shall be deemed to have occurred in the
event of a Change-In-Control followed by:
(A) a change in duties, responsibilities, status or
positions with the Employer, which, in Executive's reasonable
judgment, does not represent a promotion from or maintaining of
Executive's duties, responsibilities, status or positions as in
effect immediately prior to the Change-In-Control, or any removal
of Executive from or any failure to reappoint or reelect
Executive to such positions, except in connection with the
termination of Executive's employment for Cause, disability,
retirement or death;
(B) a reduction by the Employer in Executive's Base
Salary as in effect immediately prior to the Change-In-Control;
(C) the failure by the Employer to continue in effect
any of the benefit plans in which Executive is participating at
the time of the Change-In-Control of the Employer (unless
Executive is permitted to participate in any substitute benefit
plan with substantially the same terms and to the same extent and
with the same rights as Executive had with respect to the benefit
plan that is discontinued) other than as a result of the normal
expiration of any such benefit plan in accordance with its terms
as in effect at the time of the Change-In-Control, or the taking
of any action, or the failure to act, by the Employer which would
adversely affect Executive's continued participation in any of
such benefit plans on at least as favorable a basis to Executive
as was the case on the date of the Change-In-Control or which
would materially reduce Executive's benefits in the future under
any of such benefit plans or deprive Executive of any material
benefits enjoyed by Executive at the time of the
Change-In-Control; PROVIDED, HOWEVER, that any such action or
inaction on the part of the Employer, including any modification,
cancellation or
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termination of any benefits plan, undertaken in order to maintain
such plan in compliance with any federal, state or local law or
regulation governing benefits plans, including, but not limited
to, the Employment Retirement Income Security Act of 1974, shall
not constitute a Force Out for the purposes of this Agreement.
(D) the Employer's requiring Executive to be based in an
office located beyond a reasonable commuting distance from
Executive's residence immediately prior to the Change-In-Control,
except for required travel relating to the Employer's business to
an extent substantially consistent with the business travel
obligations which Executive undertook on behalf of the Employer
prior to the Change-In-Control;
(E) the failure by the Employer to obtain from any
successor to the Employer an agreement to be bound by this
Agreement pursuant to Section 14 hereof; or
(iii) "Person" shall have the meaning used in Sections 13(d) and
14(d) of the Exchange Act; provided however, that the term "Person"
shall not include (A) any current partner of XX Xxxxx Operating
Partnership, L.P., any stockholder or employee of the Employer on the
date hereof or any estate or member of the immediate family of such a
partner, stockholder or employee, or (B) the Employer, any of its
subsidiaries, or any trustee, fiduciary or other person or entity
holding securities under any employee benefit plan of the Employer or
any of its subsidiaries.
7. COMPENSATION UPON TERMINATION OR DURING DISABILITY.
(a) TERMINATION WITHOUT CAUSE OR WITH GOOD REASON. If (i) Executive
is terminated without Cause pursuant to Section 6(a)(iv) above, or
(ii) Executive shall terminate his employment hereunder with Good
Reason pursuant to Section (6)(b)(ii) above, then the Employment
Period shall terminate as of the effective date set forth in the
written notice of such termination (the "Termination Date") and
Executive shall be entitled to the following benefits:
(i) The Employer shall continue to pay Executive's Base Salary
for the remaining term of the Employment Period after the date of
Executive's termination, or, if such termination occurs in connection
with or after a Change-in-Control, for three years, whichever period
is longer, at the rate in effect on the date of his termination and on
the same periodic payment dates as payment would have been made to
Executive had the Employment Period not been terminated;
(ii) For the remaining term of the Employment Period, or, if
such termination occurs in connection with or after a
Change-in-Control, for three years, whichever period is longer,
Executive shall continue to receive all benefits described in Section
3 existing on the date of termination, including, but not limited to,
any bonuses and incentive compensation described in Section 3 of this
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Agreement, subject to the terms and conditions upon which such
benefits may be offered. For purposes of the application of such
benefits, Executive shall be treated as if he had remained in the
employ of the Employer with a Base Salary at the rate in effect on the
date of termination;
(iii) For purposes of any stock option plan of the Employer, (x)
Executive shall be treated as if he had remained in the employ of the
Employer for the remaining term of the Employment Period after the
date of Executive's termination, or for one year, whichever period is
longer, so that Executive may exercise any exercisable options and
Executive's other rights shall continue to vest during the remaining
term of the Employment Period with respect to any options previously
granted under such plans, except as otherwise provided in such plans,
and (y) if such termination occurs in connection with or after a
Change-in-Control, any stock options and any other rights of Executive
(including restricted stock awards) shall become fully vested and
immediately exercisable upon such termination;
(iv) Nothing herein shall be deemed to obligate Executive to
seek other employment in the event of any such termination and any
amounts earned or benefits received from such other employment will
not serve to reduce in any way the amounts and benefits payable in
accordance herewith; and
(v) If in the opinion of tax counsel selected by the Executive
and reasonably acceptable to the Employer, the Executive has or will
receive any compensation or recognize any income (whether or not
pursuant to this Agreement or any plan or other arrangement of the
Employer and whether or not the Employment Period or the Executive's
employment with the Employer has terminated) which will constitute an
"excess parachute payment" within the meaning of Section 280G(b)(1) of
the Internal Revenue Code (the "Code") (or for which a tax is
otherwise payable under Section 4999 of the Code or any successor
provision thereto), then the Employer shall pay the Executive an
additional amount (the "Additional Amount") equal to the sum of (i)
all taxes payable by the Executive under Section 4999 of the Code with
respect to all such excess parachute payments and any such Additional
Amount, plus (ii) all federal, state and local income taxes payable by
Executive with respect to any such Additional Amount. Any amounts
payable pursuant to this paragraph (v) shall be paid by the Employer
to the Executive within 30 days of each written request therefor made
by the Executive.
(b) TERMINATION FOR CAUSE OR WITHOUT GOOD REASON. If Executive is
terminated for Cause pursuant to Section 6(a)(iii) above, or if
Executive voluntarily terminates his employment hereunder without Good
Reason pursuant to Section 6(b)(ii) above, then the Employment Period
shall terminate as of the effective date set forth in the written
notice of such termination (the "Termination Date") and any
outstanding stock options held by Executive shall expire in accordance
with the terms of the stock option plan or option agreement under
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which the stock options were granted. Executive shall be entitled to
receive the following benefits:
(i) If (A) Executive is terminated for Cause pursuant to
Section 6(a)(iii)(A), (B) or (C) above (regardless of whether he
submits a claim of lack of Cause to arbitration pursuant to
Section 7(e) herein), (B) Executive is terminated for Cause pursuant
to Section 6(a)(iii)(D) above and does not submit a claim of lack of
Cause to arbitration pursuant to Section 7(e) herein, or (C) Executive
voluntarily terminates his employment hereunder without Good Reason
pursuant to Section 6(b)(ii) above, then Executive shall be entitled
to receive only his Base Salary at the rate then in effect until the
Termination Date.
(ii) If Executive is terminated for Cause pursuant to
Section 6(a)(iii)(D) above and submits a claim of lack of Cause
to arbitration pursuant to Section 7(e) herein, then, subject to
Executive's repayment obligation under Section 7(e)(ii)(B),
Executive shall be entitled to receive 80% of his Base Salary at
the rate then in effect until the earlier of either the date one
year after the Termination Date or the date of the arbitrator's
final determination.
(c) TERMINATION BY REASON OF DEATH. If Executive's employment
terminates due to his death, the Employer shall pay Executive's Base
Salary for a period of six months from the date of his death, or such
longer period as the Employer's Board of Directors may determine, to
Executive's estate or to a beneficiary designated by Executive in
writing prior to his death. Any unexercised or unvested stock options
shall remain exercisable or vest upon Executive's death only to the
extent provided in the applicable option plan and option agreements.
(d) TERMINATION BY REASON OF DISABILITY. In the event that
Executive's employment terminates due to his disability as defined in
Section 6(a)(ii) above, Executive shall be entitled to be paid his
Base Salary until the later of such time when (i) the period of
disability or illness (whether or not the same disability or illness)
shall exceed 180 consecutive days during the Employment Period and
(ii) Executive becomes eligible to receive benefits under a
comprehensive disability insurance policy obtained by the Employer
(the "Disability Period"). Following the expiration of the Disability
Period, the Employer may terminate this Agreement upon written notice
of such termination. Any unexercised or unvested stock options shall
remain exercisable or vest upon such termination only to the extent
provided in the applicable option plan and option agreements.
(e) ARBITRATION IN THE EVENT OF A DISPUTE REGARDING THE NATURE OF
TERMINATION. In the event that the Executive's employment is
terminated by the Employer for Cause or by Executive for Good Reason,
and either party contends that such Cause or Good Reason did not
exist, the parties agree to submit such claim to arbitration before
the American Arbitration Association ("AAA"), and Executive hereby
agrees to submit to any such dispute to arbitration pursuant to the
terms of this Section 7(e). In such a proceeding, the only issue
before the
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arbitrator will be whether Executive's employment was in fact
terminated for Cause or for Good Reason, as the case may be.
(i) AWARDS IN FAVOR OF THE EXECUTIVE. If the arbitrator
determines that Executive's employment was terminated by the Employer
without Cause or was terminated by Executive for Good Reason, the only
remedy that the arbitrator may award is an amount equal to the
severance payments specified in Section 7(a), the costs of
arbitration, and Executive's attorneys' fees. In cases where an award
is granted to an Executive who was terminated for Cause pursuant to
Section 6(a)(iii)(D) above, such arbitration award shall be reduced by
the amount of Base Salary already paid by the Employer pursuant to
Section 7(b)(ii) above.
(ii) AWARDS IN FAVOR OF THE EMPLOYER.
(A) If the arbitrator finds that Executive's employment
was terminated by the Employer for Cause pursuant to Section
6(a)(iii)(A), (B), (C) or (D) above, or by the Executive without
Good Reason, the arbitrator will be without authority to award
Executive anything, the parties will each be responsible for
their own attorneys' fees, and the costs of arbitration will be
paid 50% by Executive and 50% by the Employer.
(B) In addition, if the arbitrator finds that the
Executive's employment was terminated for Cause pursuant to
Section 6(a)(iii)(D) above, Executive must promptly reimburse the
Employer for the full amount of any Base Salary paid by the
Employer with respect to periods after the Termination Date
pursuant to Section 7(b)(ii) above.
8. CONFIDENTIALITY; PROHIBITED ACTIVITIES. The Executive and the Employer
recognize that due to the nature of his employment and relationship with the
Employer, the Executive has access to and develops confidential business
information, proprietary information, and trade secrets relating to the business
and operations of the Employer. The Executive acknowledges that such information
is valuable to the business of the Employer, and that disclosure to, or use for
the benefit of, any person or entity other than the Employer, would cause
irreparable damage to the Employer. The Executive further acknowledges that his
duties for the Employer include the duty to develop and maintain client,
customer, employee, and other business relationships on behalf of the Employer;
and that access to and development of those close business relationships for the
Employer render his services special, unique and extraordinary. In recognition
that the good will and business relationships described herein are valuable to
the Employer, and that loss of or damage to those relationships would destroy or
diminish the value of the Employer, the Executive agrees as follows:
(a) CONFIDENTIALITY. During the term of this Agreement (including any
renewals), and at all times thereafter, the Executive shall maintain
the confidentiality of all confidential or proprietary information of
the Employer ("Confidential Information"), and, except in furtherance
of the business of the Employer, he shall not directly or indirectly
disclose any such information to any person or entity; nor shall he
use Confidential Information for any purpose except
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for the benefit of the Employer. For purposes of the Agreement,
"Confidential Information" includes, without limitation: client or
customer lists, identities, contacts, business and financial
information; investment strategies; pricing information or policies,
fees or commission arrangements of the Employer; marketing plans,
projections, presentations or strategies of the Employer; financial
and budget information of the Employer; new personnel acquisition
plans; and all other business related information which has not been
publicly disclosed by the Employer. This restriction shall apply
regardless of whether such Confidential Information is in written,
graphic, recorded, photographic, data or any machine readable form or
is orally conveyed to, or memorized by, the Executive. The Executive
further agrees that, during the Employment Period and at all times
thereafter, he shall keep confidential and shall not release, use or
disclose without prior written permission of the Employer, all
Confidential Information developed by him on behalf of the Employer or
provided to him by the Employer, excepting only such information as
was already known to him prior to the commencement of his employment
by the Employer or such information as is already known to the public.
(b) PROHIBITED ACTIVITIES. Because Executive's services to the
Employer are essential and because Executive has access to the
Employer's Confidential Information, Executive covenants and agrees
that (i) during the Employment Period, (ii) in the event that this
Agreement is terminated by the Employer for Cause or by the Executive
other than for Good Reason, during the one-year period following the
date of such termination, and (iii) solely for purposes of paragraph
(vi) below, during the five-year period following the date on which
Executive's employment terminates for any reason, Executive will not,
without the prior written consent of the Board of Directors of the
Employer which shall include the unanimous consent of the Directors
who are not officers of the Employer, directly or indirectly
(individually, or through or on behalf of another entity as owner,
partner, agent, employee, consultant, or in any other capacity):
(i) engage, participate or assist, as an owner, partner,
employee, consultant, director, officer, trustee or agent, in any
business that engages or attempts to engage, directly or indirectly,
in any material acquisition, development, construction, operation,
management or leasing of any commercial real estate property:
(A) anywhere in the five boroughs of New York City,
regardless of whether such business is publicly or privately
held;
(B) anywhere in the New York City metropolitan area, if
such business or any of its affiliates (within the meaning of the
Securities Act of 1933) has issued any class of publicly-traded
securities;
(C) anywhere in the New York City metropolitan area,
regardless of whether such business is publicly or privately
held, if such
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business engages in the commercial real estate business in any
county in which the Employer also engages in the commercial real
estate business.
For purposes of this subsection, the New York City metropolitan
area includes each borough of New York City; Nassau, Orange, Xxxxxx,
Rockland, Suffolk and Westchester Counties in the State of New York;
Bergen, Essex, Hudson, Hunterdon, Xxxxxx, Middlesex, Monmouth, Xxxxxx,
Passaic, Somerset, Sussex, Union and Xxxxxx Counties in the State of
New Jersey; and Fairfield County in the State of Connecticut);
(ii) seek, solicit, or engage in any attempt to establish for
himself or for any other person or entity, a business relationship
with any person or entity who was a client or customer of the
Employer, or who was solicited to become a client or customer of the
Employer, during the Employment Period ("Employer Clients");
(iii) engage in any activity to interfere with, disrupt or
damage the business of the Employer, or its relationships with any
Employer Client, employee, supplier or other business relationship;
(iv) engage in business with, or provide advice or services to,
any Employer Client solicited by the Executive in breach of Section 8
of this Agreement (whether or not such services are compensated);
(v) receive, or cause any other person or entity to receive,
any compensation, consideration, or income, in any form, from any
Employer Client solicited by him in breach of Section 8 of this
Agreement; or
(vi) solicit, encourage, or engage in any activity to induce
any Employee of the Employer to terminate employment with the
Employer, or to become employed by, or to enter into a business
relationship with, any other person or entity. For purposes of this
subsection, the term Employee means any individual who is an employee
of or consultant to the Employer (or any affiliate) during the
six-month period prior to Executive's last day of employment.
(c) OPTION PROPERTY. Notwithstanding anything contained herein
to the contrary, Executive is not prohibited by this Section 8 from
(i) maintaining his or her investment in any Option Property (as such
term is defined in the Employer's final prospectus relating to the
IPO) or in any asset listed in the Employer's final prospectus
relating to the IPO under the caption "The Properties - Assets Not
Being Transferred to the Company" or (ii) from making investments in
any entity that engages, directly or indirectly, in the acquisition,
development, construction, operation, management or leasing of office
real estate properties, regardless of where they are located, if the
shares or other ownership interests of such entity are publicly traded
and Executive's aggregate investment in such entity constitutes less
than one percent (1%) of the equity ownership of such entity.
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(d) EMPLOYER PROPERTY. The Executive acknowledges that all originals
and copies of materials, records and documents generated by him or
coming into his possession during his employment by the Employer are
the sole property of the Employer ("Employer Property"). During his
employment, and at all times thereafter, the Executive shall not
remove, or cause to be removed, from the premises of the Employer,
copies of any record, file, memorandum, document, computer related
information or equipment, or any other item relating to the business
of the Employer, except in furtherance of his duties under the
Agreement. When the Executive terminates his employment with the
Employer, or upon request of the Employer at any time, the Executive
shall promptly deliver to the Employer all originals and copies of
Employer Property in his possession or control and shall not retain
any originals or copies in any form.
(e) NO DISPARAGEMENT. Following termination of the Executive's
employment for any reason, the Executive shall not disclose or cause
to be disclosed any negative, adverse or derogatory comments or
information about (i) the Employer and its parent, affiliates or
subsidiaries, if any; (ii) any product or service provided by the
Employer and its parent, affiliates or subsidiaries, if any; or (iii)
the Employer's and its parent's, affiliates' or subsidiaries'
prospects for the future.
(f) REMEDIES. The Executive declares that the foregoing limitations
in Sections 8(a) through 8(f) above are reasonable and necessary for
the adequate protection of the business and the goodwill of the
Employer. If any restriction contained in this Section 8 shall be
deemed to be invalid, illegal or unenforceable by reason of the
extent, duration or scope thereof, or otherwise, then the court making
such determination shall have the right to reduce such extent,
duration, scope, or other provisions hereof to make the restriction
consistent with applicable law, and in its reduced form such
restriction shall then be enforceable in the manner contemplated
hereby. In the event that the Executive breaches any of the promises
contained in this Section 8, the Executive acknowledges that the
Employer's remedy at law for damages will be inadequate and that the
Employer will be entitled to specific performance, a temporary
restraining order or preliminary injunction to prevent the Executive's
prospective or continuing breach and to maintain the status quo. The
existence of this right to injunctive relief, or other equitable
relief, or the Employer's exercise of any of these rights, shall not
limit any other rights or remedies the Employer may have in law or in
equity including, without limitation, the right to arbitration
contained in Section 7(e) hereof and the right to compensatory,
punitive and monetary damages. In the event that a final
non-appealable judgment is entered in favor of one of the parties,
that party shall be reimbursed by the other party for all costs and
attorneys' fees incurred by such party in such action. Executive
hereby agrees to waive his right to a jury trial with respect to any
action commenced to enforce the terms of this Agreement.
(g) TRANSITION. Regardless of the reason for his departure from the
Employer, the Executive agrees that: (i) he shall assist the Employer
in maintaining the
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business of the clients and customers with whom the Executive has a
relationship; and (ii) he shall take all steps reasonably requested by
the Employer to effect a successful transition of those relationships
to the person or persons designated by the Employer.
(h) SURVIVAL. The provisions of this Section 8 shall survive
termination of the Executive's employment. The covenants contained in
Section 8 shall be construed as independent of any of other provisions
contained in this Agreement and shall be enforceable regardless of
whether the Executive has a claim against the Employer under the
Agreement or otherwise.
9. COOPERATION. The Executive agrees to give prompt written notice to the
Employer of any claim or injury relating to the Employer, and to fully cooperate
in good faith and to the best of his ability with the Employer in connection
with all pending, potential or future claims, investigations or actions which
directly or indirectly relate to any transaction, event or activity about which
the Executive may have knowledge because of his employment with the Employer.
Such cooperation shall include all assistance that the Employer, its counsel, or
its representatives may reasonably request, including reviewing documents,
meeting with counsel, providing factual information and material, and appearing
or testifying as a witness.
10. CONFLICTING AGREEMENTS. Executive hereby represents and warrants that
the execution of this Agreement and the performance of his obligations hereunder
will not breach or be in conflict with any other agreement to which he is a
party or is bound, and that he is not now subject to any covenants against
competition or similar covenants which would affect the performance of his
obligations hereunder.
11. NOTICES. All notices or other communications required or permitted to
be given hereunder shall be in writing and shall be delivered by hand and or
sent by prepaid telex, cable or other electronic devices or sent, postage
prepaid, by registered or certified mail or telecopy or overnight courier
service and shall be deemed given when so delivered by hand, telexed, cabled or
telecopied, or if mailed, three days after mailing (one business day in the case
of express mail or overnight courier service), as follows:
(a) if to the Executive:
Xxxxxx Xxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(b) if to the Employer:
XX Xxxxx Realty Corp.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or such other address as either party may from time to time specify by written
notice to the other party hereto.
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12. AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement shall be effective unless it shall be in writing and signed by the
party against whom such amendment, modification or waiver is sought.
13. SEVERABILITY. If any provision of this Agreement (or any portion
thereof) or the application of any such provision (or any portion thereof) to
any person or circumstance shall be held invalid, illegal or unenforceable in
any respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision hereof (or the remaining
portion thereof) or the application of such provision to any other persons or
circumstances.
14. SUCCESSORS. Neither this Agreement nor any rights hereunder may be
assigned or hypothecated by the Executive. This Agreement may be assigned by the
Employer and shall be binding upon, and inure to the benefit of, the Employer's
successors and assigns.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to the other party.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed entirely within such State, without regard to the conflicts
of law principles of such State.
17. CHOICE OF VENUE. Executive agrees to submit to the jurisdiction of the
United States District Court for the Southern District of New York or the
Supreme Court of the State of New York, New York County, for the purpose of any
action to enforce any of the terms of this Agreement.
18. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings
relating to such subject matter. The parties hereto shall not be
liable or bound to any other party in any manner by any
representations, warranties or covenants relating to such subject
matter except as specifically set forth herein.
15
19. PARAGRAPH HEADINGS. Paragraph headings used in this Agreement are
included for convenience of reference only and will not affect the meaning of
any provision of this agreement.
IN WITNESS WHEREOF, this Agreement is entered into as of the date and year
first above written.
XX XXXXX REALTY CORP.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
/s/ Xxxxxx Xxxxxx
-------------------------------
Xxxxxx Xxxxxx
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