EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered into
on this 1st day of November, 1996, by and between XXXXXX X. XXXXXXX, XX., an
individual resident of the State of Tennessee (the "Executive"), and WEEKS
CORPORATION, a Georgia corporation ("the Company");
W I T N E S S E T H:
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WHEREAS, the Company desires to employ Executive, and Executive
desires to be employed by the Company, on the terms and conditions contained in
this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement,
intending to be legally bound, hereby agree as follows:
(S) 1.
Employment
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1.1. Employment. Subject to the terms of this Agreement, the Company
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hereby employs Executive, and Executive hereby accepts such employment with the
Company. Executive initially shall serve as Executive Vice President of the
Company, and initially shall have the duties, rights, and responsibilities
normally associated with such position, including, without limitation, day-to-
day responsibility (together with Xxxx X. Xxxxxx, Xx., as long as Xx. Xxxxxx
serves as an Executive Vice President of the Company) for the Company's
operations in Nashville, Tennessee, together with such other reasonable duties
relating to the operation of the business of the Company as may be assigned to
him from time to time by the Board of Directors or other governing body of the
Company. Executive shall devote his full business time, skills, and best
efforts to rendering services on behalf of the Company and shall exercise such
care as is customarily required of executives undertaking similar duties for
entities similar to the Company. Notwithstanding the foregoing, Executive may
engage in the business activities listed with respect to this Section 1.1 on
Exhibit A hereto.
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(S) 2.
Compensation; Expenses
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2.1. Base Salary. Commencing on the Effective Date (as defined in
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(S) 3.1), the Company shall pay Executive during the term of Executive's
employment under this Agreement a base salary equal to $150,000 per annum
(prorated for the balance of 1996) (the "Base Salary"), which amount shall be
subject to adjustment, if any, in accordance with this (S) 2.1. The
Compensation Committee of the Board of Directors or other governing body of the
Company (the "Committee") shall review Executive's Base Salary on an annual
basis, and the Committee, upon such review and in its sole discretion, may
increase or decrease Executive's Base Salary in accordance with criteria to be
established by the Committee; provided, however, that Executive's Base Salary
shall not be reduced below the amount so stated in this (S) 2.1; and provided
further, however, that such criteria shall be determined primarily on the basis
of growth in the Company's revenues and funds from operations per share of
capital stock, on the performance of the business units which are under the
management and supervision of Executive and on the basis of the satisfaction of
other employment goals established by the Committee which shall be commensurate
with the scope of Executive's duties and responsibilities. The Base Salary,
less all applicable withholding taxes, shall be paid to Executive in accordance
with the payroll procedures in effect from time to time with respect to
executive officers of the Company.
2.2. Incentive Compensation. Prior to January 1, 1998, Executive
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shall not be entitled to participate in any incentive compensation plans in
effect with respect to executive officers of the Company or otherwise receive
any incentive compensation; provided, however, the Company may elect, in its
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sole and absolute discretion, the appropriateness of paying incentive
compensation to Executive with respect to the period commencing on the date of
this Agreement and ending on December 31, 1997, to the extent the performance of
the Company's operations in the Nashville, Tennessee market significantly exceed
the Company's budgeted projections for such period. Effective as of January 1,
1998, Executive shall be entitled to participate in any incentive compensation
plans in effect with respect to executive officers of the Company, with the
criteria for Executive's participation in such plans to be established by the
Committee in its sole discretion; provided, however, that such incentive
compensation for any year will not exceed 75% of the Base Salary for such year.
2.3. Stock Options. Executive shall be entitled to participate in
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such employee stock option plans as are from time to time established for the
benefit of employees of the Company in accordance with the terms and conditions
of such plans. At the Effective Date, Executive shall be granted immediately
vested options to purchase 40,000 shares of Weeks Corporation common stock, par
value $.01 per share, in accordance with the Weeks Corporation Incentive Stock
Plan as in effect on the Effective Date.
2.4. Expenses. Executive shall be reimbursed for all reasonable
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business-related expenses incurred by Executive at the request of or on behalf
of the Company, including, without
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limitation, first class travel expenses incurred in connection with the
performance of Executive's duties and responsibilities hereunder.
2.5. Participation in Employee Benefit Plans. Executive shall be
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entitled to participate in such medical, dental, disability, hospitalization,
life insurance, profit sharing, and other benefit plans as the Company shall
maintain from time to time for the benefit of executive officers of the Company,
on the terms and subject to the conditions set forth in such plans.
2.6. Vacation. In addition to Company holidays, Executive shall
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receive such paid vacation time each year during the term of this Agreement as
is consistent with vacation policies of the Company for its executive officers,
but in no event less than six weeks of paid vacation time annually. Executive
agrees that the vacation time provided for in this Section 2.6 will not coincide
with the vacation time of Xxxx X. Xxxxxx, Xx., except for such business related
travel or other brief absences which the Company, in its reasonable discretion,
does not deem excessive, unreasonable or detrimental to the Company's
operations. Any unused vacation days in any year may not be carried over to
subsequent years and Executive shall not receive any additional compensation for
unused vacation days.
2.7. Automobile Expenses. Commencing on the Effective Date, during
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the term of Executive's employment under this Agreement, Executive shall be
reimbursed for his actual automobile expenses in an amount not to exceed $600.00
per month under this Agreement.
(S) 3.
Term of Employment
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3.1. Term of Employment. Unless earlier terminated in accordance
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with (S) 3.2, the employment of Executive under this Agreement shall commence as
of the date that this Agreement is executed (the "Effective Date") and shall
continue up to, but not including, the third anniversary of such date.
Thereafter, Executive's employment under this Agreement shall be extended for
such period, if any, as agreed to in writing by Executive and the Company.
3.2. Termination. Executive's employment under this Agreement may be
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terminated
(a) by the Company upon the death or total disability of Executive
(total disability meaning the inability of Executive to perform his normal
required services under this Agreement for a period of six consecutive
months during the term of this Agreement by reason of Executive's mental or
physical disability, as reasonably determined by the Board of Directors or
other governing body of the Company) (which shall be referred to as a
"Disability Termination"); or
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(b) by the Company for "cause," which shall exist only upon the
occurrence of one or more of the following: (i) Executive is convicted of,
pleads guilty to, or confesses to any felony or any act of fraud,
misappropriation or embezzlement to the material damage or prejudice of the
Company or any affiliate of the Company, as determined by the Board of
Directors or other governing body of the Company in good faith, or (ii)
Executive engages in a fraudulent act relating to the business of the
Company or any affiliate of the Company, as determined by the Board of
Directors or other governing body of the Company in good faith (which shall
be referred to individually and collectively as a "For Cause Termination");
or
(c) by the Company for any reason other than a For Cause Termination
or a Disability Termination (which shall be referred to as a "No Cause
Termination"); or
(d) by Executive voluntarily for any reason other than an Employee-
Initiated Termination (as defined in (S) 3.2(e)) after giving 30 days prior
written notice to the Company (which shall be referred to as a "Voluntary
Termination"); or
(e) by Executive for "cause", which shall exist if the Company fails
to cure within ten days after receiving notice from Executive of the
occurrence of any of the following: (i) Executive is required to move more
than 20 miles from the city limits of Franklin, Tennessee without his
consent, (ii) there is a material reduction in Executive's duties, rights
or responsibilities under this Agreement without his consent, or (iii)
there is a material decrease in the value of Executive's compensation and
benefits package from the Company without his consent (which shall be
referred to as an "Employee-Initiated Termination").
(S) 4.
Results of Termination
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4.1. Termination As Result of Voluntary Termination or For Cause
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Termination. If Executive's employment under this Agreement is terminated as a
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result of a Voluntary Termination or a For Cause Termination, Executive shall
not thereafter be entitled to receive any Base Salary for periods following such
termination and shall not be entitled to receive any incentive, bonus or other
special compensation with respect to the year in which such termination occurs
or for any period thereafter; provided, however, that Executive shall be
entitled to receive any Base Salary that may be owed to Executive but is unpaid
as of the date on which Executive's employment is terminated.
4.2. Termination As Result of No Cause Termination or Employee-
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Initiated Termination. If Executive's employment under this Agreement is
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terminated as a result of a No Cause Termination or an Employee-Initiated
Termination, Executive shall be entitled to receive (i)
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any Base Salary that may be owed to Executive but is unpaid as of the date on
which Executive's employment is terminated, (ii) additional compensation equal
to any amount Executive would have received (with respect to the year in which
the termination occurs) under any and all incentive, bonus, and other special
compensation plans and arrangements in which Executive is a participant at the
date of termination, multiplied by a fraction, the numerator of which is the
number of days that have elapsed in such year through the date of termination,
and the denominator of which is 365, and (iii) additional compensation equal to
the total Base Salary Executive would have received (assuming the Base Salary as
in effect on the date of such termination) for the period from the date of
termination up to, but not including, the third anniversary of the Effective
Date, or, if later, through the remainder of his term of employment under any
extension of this Agreement. The compensation referred to in (i) and (iii) above
shall be paid, in equal installments, at the same times Executive would have
received salary payments had he remained an employee, unless the Company elects
to make such payments sooner. The compensation referred to in (ii) above shall
be paid at the same time or times as payments would have been made to Executive
under the applicable incentive, bonus or other special compensation arrangements
had he remained an employee. The compensation referred to in (i), (ii), and
(iii) above shall constitute the sole and exclusive remaining compensation due
to Executive hereunder.
4.3. Termination as a Result of a Disability Termination Event. If
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Executive's employment under this Agreement is terminated as a result of a
Disability Termination, (i) Executive shall be entitled to receive any Base
Salary that may be owed to Executive but is unpaid as of the date on which
Executive's employment is terminated, and (ii) Executive (or at his death, his
designated beneficiary, if any, or if none, his surviving spouse or, if none,
his estate) shall continue to receive Executive's Base Salary for the month in
which such termination occurs and for the following six months. If payment of
Base Salary is to be made to Executive's estate, such payment shall be made as
soon as practical after Executive's death in a single lump sum equal to the
present value, as determined using a 9% interest rate assumption, of the total
amount of Base Salary payable to the estate.
4.4. Other Employee Benefit Plans and Arrangements. The benefits, if
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any, payable to or on behalf of Executive upon his termination of employment
from the Company under any other employee benefit plans and arrangements not
specifically provided for herein shall be governed by the terms and conditions
for benefit payments set forth in such plans and arrangements.
(S) 5.
Miscellaneous
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5.1. Allocation of Income. Executive hereby acknowledges that the
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Company and its related affiliates may allocate certain portions of Executive's
compensation among the Company
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and its affiliates. Executive agrees to such allocation and acknowledges that
for purposes of this Agreement, Executive will be deemed to be employed by, and
to perform services for, the entity to which such compensation is allocated.
5.2. Binding Effect. This Agreement shall inure to the benefit of
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and shall be binding upon Executive and his executor, administrator, heirs,
personal representative and assigns, and the Company and its successors and
assigns; provided, however, that Executive shall not be entitled to assign or
delegate any of his rights or obligations hereunder without the prior written
consent of Company.
5.3. Construction of Agreement. No provision of this Agreement or
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any related document shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
drafted such provision.
5.4. Arbitration of Disputes. If a dispute arises between the
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parties, then the parties agree that their respective representatives shall meet
and consult in good faith and attempt to settle the dispute, within thirty (30)
days of written notice thereof, as a condition precedent to the initiation of
arbitration proceedings as set forth below.
Any dispute, controversy, or claim arising out of or relating to this
Agreement, the breach, termination or invalidity thereof, or Executive's
employment, including claims of tortious interference or other tort or statutory
claims, and including without limitation any dispute concerning the scope of
this arbitration clause, shall be settled by arbitration in accordance with the
Employment Dispute Arbitration Rules of the American Arbitrators Association
then in effect. The judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The arbitration under this
Agreement shall be held in Nashville, Tennessee, or at such other place as may
be selected by mutual agreement of the parties.
The arbitrator shall be mutually acceptable to the parties, or failing
agreement, selected pursuant to the Employment Dispute Arbitration Rules of the
American Arbitrators Association. The parties intend that the arbitrator shall
be independent and impartial. To this end, the arbitrator shall disclose to the
parties any professional, family, or social relationships, past or present, with
any party or counsel.
Strict rules of evidence shall not apply in any arbitration conducted
pursuant to this Agreement. The parties may offer such evidence as they desire
and the arbitrator shall accept such evidence as the arbitrator deems relevant
to the issues and accord it such weight as the arbitrator deems appropriate.
The arbitrator shall have the discretion to order a prehearing exchange of
information by the parties, including without limitation, production of
requested documents, exchange of summaries of testimony of proposed witnesses,
and examination by deposition of parties. No party shall be allowed, however,
to take more than one deposition of the opposing party
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and no deposition shall last longer than six (6) hours. All disputes regarding
discovery shall be decided by the arbitrator.
The arbitrator award shall be in writing and shall specify the factual and
legal bases for the award. In rendering the award, the arbitrator shall
determine the respective rights and obligations of the parties according to the
laws of the State of Tennessee or, if applicable, federal law. The arbitrator
shall have the authority to award any remedy or relief that a federal or state
court within the State of Tennessee could order or grant.
Any provisional remedy that would be available from a court of law shall be
available from the arbitrator to the parties, pending the arbitrator's
determination of the merits of the parties' dispute. This shall include orders
of attachment, temporary restraining orders, injunctions, and appointment of a
receiver. If the arbitrator issues such an order, either party may immediately
apply to a court of competent jurisdiction for enforcement of the order, even
though the arbitrator may not have rendered a final award.
All fees and expenses of the arbitration, including the fees of the
arbitrator and the expense of each parties' counsel, experts, witnesses and
preparation and presentation of proofs, shall be paid by Company.
Unless legally required to do so, neither party may disclose the existence,
content, or results of any arbitration under this Agreement without the prior
written consent of the other party, nor may the arbitrator disclose any such
information without the consent of both parties. This provision shall apply to
all aspects of the arbitration proceeding, including without limitation,
discovery, testimony, other evidence, briefs, and the award.
It is the specific intent of the parties that this arbitration clause be
governed by the Federal Arbitration Act, 9 U.S.C. Section 1 et. seq. ("FAA");
however, if this cause is unenforceable for any reason under the FAA, then the
parties intend that it be governed by the provisions of Tenn. Code Xxx. Sections
29-5-30 through 29-5-320.
Both Executive and Company represent and warrant they have read the
foregoing Section 5.3, that they have had an opportunity to consult with and
receive advice from legal counsel regarding the foregoing Section 5.3, and that
they hereby forever waive all rights to assert that this Section 5.3 was the
result of duress, coercion, or mistake of law or fact.
_____ _____ (Initial of both parties in each space).
5.5. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Tennessee.
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5.6. Survival of Agreements. All covenants and agreements made
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herein shall survive the execution and delivery of this Agreement and the
termination of Executive's employment hereunder for any reason.
5.7. Headings. The section and paragraph headings contained in this
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Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
5.8. Notices. All notices, requests, consents and other
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communications hereunder shall be in writing and shall be deemed to be given
when delivered personally or mailed first class, registered or certified mail,
postage prepaid, in either case, addressed as follows:
(a) If to Executive:
Xx. Xxxxxx X. Xxxxxxx, Xx.
000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxx 00000
(b) If to the Company, addressed to:
Weeks Corporation
0000 Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
with a copy to:
Xx. Xxxxxxx X. Xxxxx
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
5.9. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
5.10. Entire Agreement. This Agreement constitutes the entire
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agreement of the parties with respect to the subject matter hereof and upon the
Effective Date will supersede and replace all prior agreements, written and
oral, between the parties hereto or with respect to the subject matter hereof.
This Agreement may be modified only by a written instrument signed by each of
the parties hereto.
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5.10. No Violation with Other Agreements. Nothing in this
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Agreement shall be deemed to interfere with or be in violation of any other
obligation of Executive that may exist under other agreements to which Executive
is a party; provided, however, that such other agreements do not otherwise
violate Section 1.1 hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
WEEKS CORPORATION
By:_______________________________
Title:____________________________
EXECUTIVE
__________________________________
Xxxxxx X. Xxxxxxx, Xx.
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EXHIBIT A
Section 1.1
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Permitted Outside Business Activities: Executive will be permitted
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to continue to serve as a general partner of NWI X, L.P., the general partner
of NWI Warehouse Group, L.P. ("NWI"), and in that capacity (i) complete the
properties under development, (ii) discharge NWI's obligations under various
contracts with respect to such properties under development and with respect
to the Xxxxx Xxxxx Xxxx, X-000 land, and certain other properties, (iii) sell
assets of NWI and otherwise discharge its duties and responsibilities as a
general partner of NWI X, L.P. in its capacity as the general partner of NWI,
in each case consistent with that certain Noncompetition Agreement of even
date herewith between Executive and Company and the Noncompetition Agreement
of even date herewith between NWI and the Company.
To the extent that Weeks has refused to accept a Development Property
pursuant to any right contained in one the Transaction Documents (as listed
on Exhibit A to the First Amendment to the Second Amended and Restated
Agreement of Limited Partnership of Weeks Realty), then Executive shall be
entitled to operate, develop, market and otherwise conduct business with
respect to such Development Property.
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