EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of August, 2005, between X.X. Xxxx, Inc.,
a New York corporation with offices and principal place of business located at 0
Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter called the "Company"), and
Xxxxx X. Xxxxxxx (hereinafter called "Xxxxxxx" or "Employee")
WHEREAS, Xxxxxxx has rendered distinguished and dedicated service to the
Company for many years, currently serves as its President and his services have
continuing value to the Company; and
WHEREAS, the Company desires to assure continuity of the services of
Xxxxxxx as President by means of an Employment Agreement and Xxxxxxx is willing
to enter into such Agreement upon the terms and conditions hereinafter set
forth; and
WHEREAS, the protection of the Company's Confidential Information (as
defined hereinafter) is vital to the continued successful operation of the
Company's business.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
it is agreed as follows:
1. Nature of Services and Duties:
(A) The Company hereby employs Xxxxxxx and Xxxxxxx accepts employment
as the President of the Company.
(B) Xxxxxxx shall devote his best efforts and substantially all of his
business time to advance the interests of the Company, subject to the control of
the Board of Directors, and subject to and bound by all personnel and corporate
policies
and procedures applicable to employees of the Company. At all times he shall be
furnished office accommodations adequate for the performance of his duties and
compatible with his position as President of the Company.
2. Term of Employment:
(A) Xxxxxxx'x employment hereunder shall commence as of August 1, 2005
and shall end at the close of business on July 31, 2008, subject to earlier
termination as provided in this Agreement in the event of Xxxxxxx'x retirement
or permanent disability (the "Term of Employment"). Leave of absence for any
period of time authorized by the Board of Directors of the Company shall not be
deemed an interruption, cessation or termination of the terms of Xxxxxxx'x
employment.
(B) Xxxxxxx may, at his option, elect to retire at any time upon at
least ninety (90) days prior written notice to the Company.
(C) Nothing in this Agreement shall prevent the Company from
terminating the employment at any time for cause. The following events shall
constitute cause: (i) fraud, criminal conduct, misappropriation, embezzlement or
the like; or (ii) willful misconduct of the Employee in connection with the
performance of his duties under this Agreement; or (iii) violation of any
material provision of this Agreement.
3. Compensation:
(A) The Company agrees to compensate Xxxxxxx for his services, and
Xxxxxxx agrees to accept as compensation for his services, during the period of
his employment hereunder or any
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renewal thereof, the sum of not less than Two Hundred Twenty Thousand
($220,000.00) Dollars per annum, payable in equal monthly or other installments
in accordance with the general practice of the Company with respect to Senior
Executives. Xxxxxxx shall be entitled to such increases and additional payments
as may be determined from time to time by the Board of Directors in its
discretion.
(B) To the extent to which he may qualify, he shall, in addition, be
entitled to participate in all plans now or hereafter adopted for Executives or
employees, including, but not limited to, pension, group insurance or medical
plans, and in any other employee benefit plans, whether similar to or different
from any of the foregoing categories, offered or made available by the Company.
(C) The Company shall reimburse Xxxxxxx upon submission of vouchers by
him, for all out-of-pocket expenses for entertainment, travel, meals, hotel
accommodations and the like, incurred by him in the interest of the business of
the Company.
(D) The Company shall have the right, at its option, to allocate
payment of Xxxxxxx'x compensation or expenses, or any part thereof, among its
subsidiaries or divisions, if any, to the extent applicable as its Board of
Directors may from time to time direct.
4. Restrictive Covenant:
(A) Xxxxxxx acknowledges that: (i) due to the nature of his duties, he
has and will continue to have access to and will acquire confidential
information relating to the business and
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operation of the Company; and (ii) Xxxxxxx'x expertise and background would
enable him to compete with the business of the Company, which is the ownership,
control, development, management and operation of real property;
(B) Xxxxxxx shall not at any time, either during or after his
employment, directly or indirectly, divulge, disclose or communicate to any
person or entity, any non-public information affecting or relating to the
business of the Company (the "Confidential Information"), including without
limitation the names and addresses of its tenants, sub-tenants and prospective
or potential tenants, marketing information, information regarding the nature
and extent of its ownership interests in real property, leasing information,
including, but not limited to, rents, expiration dates, rights of renewal, or
any other lease terms, costs and expenses of operation, income, its manner of
operation, its plans, its financial arrangements or condition, its policies and
procedures, or contracts and other relationships with and information regarding
other individuals or entities, including, but not limited to employees and
independent contractors, regardless of whether any or all of the foregoing
matters would be deemed confidential material or important, the parties
stipulating that as between them such information is confidential, important and
gravely affects the successful conduct of the business of the Company and its
goodwill and that any breach of this Section is a material breach of this
Agreement. Upon Xxxxxxx'x termination of employment, he shall immediately
deliver to the Company all of the Company's
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Confidential Information and shall not retain in any copies of the Company's
Confidential Information without the express prior written consent of the
Company.
(C) In consideration of the amounts paid and payable pursuant to this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Xxxxxxx hereby agrees as follows:
1. Except under and pursuant to this Agreement, or as otherwise
consented to in writing by the Company from time to time, during the Term of
Employment, Xxxxxxx shall not at any time or place whatsoever, either directly
or indirectly, engage or be interested as owner, stockholder, partner, member
director, officer, employee, independent contractor or otherwise, (either with
or without compensation), in any person, business or entity which is directly or
indirectly in competition with the Company, or any of its subsidiaries. This
provision shall not be construed to prohibit investment by Xxxxxxx in publicly
traded securities.
2. During the twenty-four (24) month period immediately following
the termination of Xxxxxxx'x employment, without regard to the reason for such
termination, Xxxxxxx shall not directly or indirectly, whether on Xxxxxxx'x own
account or as an employee, partner, member, manager, officer or director of, or
consultant or independent contractor to, or holder of more than five (5%)
percent of the equity interest in any other entity, within a fifteen (15) mile
radius of the then principal place of business of the Company, do any of the
following:
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(a) enter into or engage in any business which is competitive with
the Company's Business.
(b) induce any person employed by the Company, to join a
corporation, partnership, joint venture, limited liability company or other
entity in any such capacity, directly or indirectly, if such business is
competitive with that of the Company or if such business, or its successors or
assigns, competes with the Company or if such business, or its successors or
assigns, solicits tenants of the Company.
(c) employ, directly or indirectly, any of the Company's
Confidential Information in whole or in any material part.
(D) For the purposes of this Agreement, a business will be deemed
competitive with the Company's Business if it engages in any manner in the
ownership, control, development, management and/or operation of real property.
(E) Xxxxxxx hereby agrees that, in the event of his breach of any of
the covenants set forth in this Section 4, the Company shall be entitled to
obtain appropriate equitable relief, including, without limitation, a permanent
injunction or similar court order enjoining Xxxxxxx from violating any of such
provisions, and that pending the hearing and the decision on the application for
permanent equitable relief, the Company shall be entitled to a temporary
restraining order and a preliminary injunction, all at Xxxxxxx'x expense,
including reasonable attorney's fees and disbursements, provided, however, no
such remedy shall be construed to be the exclusive remedy of the
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Company and any and all such remedies shall be held and construed to be
cumulative and not exclusive of any rights or remedies, whether at law or in
equity, otherwise available under the terms of this Agreement, at common law, or
under federal, state or local statutes, rules and regulations.
(F) Each provision contained in this Section 4 is intended to be
independent of the others, and shall survive and shall remain binding and
enforceable, notwithstanding that any of the other provisions may be declared
invalid, void or unenforceable and, in the case of the geographical and time
limitations, may be modified in geographical scope or duration by any court of
competent jurisdiction to the extent necessary to make such provision valid and
enforceable.
(G) The provisions of this Section 4 shall survive the termination of
Xxxxxxx'x employment.
(H) If any present or future statute of the State of New York provides
protections or remedies relating to Confidential Information, which are greater
than the protections and remedies provided by this Agreement, then the Company
shall also have the benefit of such additional statutory protections and
remedies.
(I) The provisions of this Section 4 shall not apply to work of any
kind performed by the Employee for any entity which is affiliated or related to
the Company, including, but not limited to Xxxxxxxxx Enterprises, Inc.
5. Disability:
(A) If Xxxxxxx becomes permanently disabled (as defined herein) during
the period of his employment, the Company may
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terminate his employment on not less than three (3) months' prior notice, but
the Company shall nevertheless pay Xxxxxxx his compensation, as then in effect,
for the balance of his Term of Employment.
(B) Xxxxxxx shall be deemed permanently disabled if either (i) he and
the Company so agree, or (ii) after a period of ninety (90) days during which
Xxxxxxx is continuously unable, as a result of any physical or mental ailment,
to perform his major duties and responsibilities as provided in Section 1, he
is, either at his (or on his behalf) or the Company's request, examined by New
York University Medical Center, New York, New York, or any successor
organization, or by any other Hospital in the City of New York of comparable
stature, mutually agreed upon (hereinafter called the "Hospital"), and the
Hospital certifies that, in the opinion of its Medical Examiners, Xxxxxxx'x
health is such that, for a period of ninety (90) days or more from that date,
Xxxxxxx is and probably will be incapacitated, physically or mentally, from
performing, or that it would seriously impair his health to perform, his major
duties and responsibilities as provided in Section 1 hereof. If, for any reason,
the Hospital cannot or refuses to pass on such question, such certificate may be
obtained from a majority of a Board of three (3) licensed physicians, members of
the American Medical Association (New York City Division), one (1) to be chosen
by Xxxxxxx or on his behalf, one (1) by the Company, and the third (3rd) by the
other two (2), if they can agree thereon, otherwise by the then President of the
New York State Medical Association. The certificate of two (2)
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of the said physicians shall be final and binding upon both parties hereto.
6. Assignability of This Agreement:
This Agreement is personal and shall not be assignable by Xxxxxxx and
its terms, covenants and conditions shall be binding upon and inure to the
benefit of the Company, or its successors and assigns.
7. Interpretation of This Agreement:
This Agreement shall be construed and enforced in accordance with, and
governed by, the laws of the State of New York, applicable to agreements made
and to be performed in New York. This Agreement supersedes all prior Agreements
and understandings relating to the subject matter hereof, and this Agreement may
not be modified or amended or any term or provision thereof waived or discharged
except in writing signed by the party against whom such amendment, modification,
waiver or discharge is sought to be enforced. No waiver of any provision of this
Agreement shall be valid unless in writing and signed by the person or party to
be charged.
The headings of this Agreement are for purpose of reference only and
shall not limit or otherwise affect the meaning thereof.
Whenever the singular is used in this Agreement and when required by
the context, the same shall include the plural.
This Agreement may be executed in one or more counterparts each of
which shall be deemed an original.
8. Notices:
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Any notices that may, at any time, be required to be given hereunder
shall mean written notice and be addressed by Registered or Certified Mail as
follows, unless a different address be furnished by Registered or Certified Mail
to the other party:
If to the Company: at 0 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
If to Xxxxxxx: at Rockridge Farm
000 Xxxxx 00
Xxxxxx, XX 00000
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by its President, attested by its Secretary and its corporate seal affixed
hereunto, and Xxxxxxx has affixed his hand and seal as of the date first above
written.
X.X. Xxxx, Inc.
By:
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Xxxx Xxxxxxxxxx, Vice President
and Treasurer
(SEAL)
ATTEST:
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Xxxxxxxxx Xxxxxxxx, Secretary
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Xxxxx X. Xxxxxxx
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STATE OF NEW YORK )
)ss.:
COUNTY OF )
On this day of , 2005, before me, the individual, personally
appeared Xxxx Xxxxxxxxxx, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual whose name is subscribed to the
within instrument acknowledged to me that he executed the same in his capacity,
and that by his signature on the instrument, the individual, or the person on
behalf of which the individual acted, executed the instrument
-----------------------------
Notary Public
STATE OF NEW YORK )
)ss.:
COUNTY OF )
On this day of , 2005, before me, the individual, personally
appeared Xxxxx X. Xxxxxxx, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual whose name is subscribed to the
within instrument acknowledged to me that he executed the same in his capacity,
and that by his signature on the instrument, the individual, or the person on
behalf of which the individual acted, executed the instrument
-----------------------------
Notary Public
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