EXECUTIVE EMPLOYMENT AGREEMENT BETWEEN EDUCATION REALTY TRUST, INC. AND OLAN BREVARD JANUARY 1, 2011
Exhibit
10.5
BETWEEN
AND
XXXX
XXXXXXX
JANUARY
1, 2011
THIS EXECUTIVE EMPLOYMENT AGREEMENT
(this “Agreement”) by
and between Education Realty Trust, Inc., a Maryland corporation (the “Company”), and Xxxx Xxxxxxx
(“Executive” and,
together with the Company, the “Parties”) is effective as of
January 1, 2011 (the “Effective
Date”).
WHEREAS, Executive has been and
currently is engaged by the Company to serve as its Senior Vice President –
Acquisitions;
WHEREAS, Executive’s position is a
position of trust and responsibility with access to Trade Secrets (defined
below), Confidential Information (defined below) and information concerning
Employees (defined below) and Customers (defined below) of the
Company;
WHEREAS, Trade Secrets, Confidential
Information and the relationships between the Company and each of its Employees
and Customers are valuable assets of the Company and may not be used for any
purpose other than the Company’s Business (defined below);
WHEREAS, Executive acknowledges that if
Executive were to perform services for a competitor during the Restricted Period
(defined below), it would be inevitable that Executive would disclose the
Company’s Trade Secrets and Confidential Information;
WHEREAS, Executive is currently
employed by the Company on an at-will basis;
WHEREAS, the Company desires to
continue such employment relationship and enter into this Agreement, which will
set forth the terms and conditions under which Executive will continue to serve
the Company;
WHEREAS, Executive wishes to continue
his employment with the Company on the terms and conditions set forth herein;
and
WHEREAS, the Company has agreed to
employ Executive in exchange for Executive’s compliance with the terms of this
Agreement.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
1. Definitions. For
purposes of this Agreement, all initially capitalized words and phrases used in
this Agreement have the following meanings:
“Affiliate” shall mean, with
respect to any individual or entity, any other individual or entity who,
directly or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with such individual or
entity.
“Agreement” shall have the
meaning set forth in the introductory paragraph above.
“Application” shall have the
meaning set forth in Section
9.
“Base Salary” shall have the
meaning set forth in Section
4(a).
“Board” shall mean the Board of
Directors of the Company.
“Bonus” shall have the meaning
set forth in Section
4(b).
“Business” shall mean the
business of developing, owning and managing student housing communities,
providing third-party management services for student housing communities and
providing third-party development consulting services for student housing
communities.
“Cause” shall mean that
Executive has (a) continually failed to substantially perform, or been grossly
negligent in the discharge of, his duties to the Company (in any case, other
than by reason of a Disability, physical or mental illness or analogous
condition); (b) been convicted of or pled nolo contendere to a felony
or a misdemeanor with respect to which fraud or dishonesty is a material
element; or (c) materially breached any material Company policy or agreement
with the Company.
“Change of Control” shall mean
the first of the following events to occur after the Effective
Date:
(a) any
Person or group of Persons together with its Affiliates, but excluding (i) the
Company or any of its Subsidiaries, (ii) any employee benefit plans of the
Company or (iii) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company, is or becomes, directly or indirectly, the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of
securities of the Company representing fifty percent (50%) or more of the
combined voting power of the Company’s then outstanding securities (not
including in the securities beneficially owned by such Person any securities
acquired directly from the Company);
(b) the
following individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who, on the Effective Date,
constitute the Board and any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation, relating to the
election of directors of the Company) whose appointment or election by the Board
or nomination for election by the Company’s stockholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors on the Effective Date or whose appointment,
election or nomination for election was previously so approved or
recommended;
(c) the
consummation of a merger or consolidation of the Company or any direct or
indirect Subsidiary of the Company with any other corporation or entity
regardless of which entity is the survivor, other than a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or being converted into voting securities of the surviving entity)
more than fifty percent (50%) of the combined voting power of the voting
securities of the Company, such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation;
(d) the
stockholders of the Company approve a plan of complete liquidation or winding-up
of the Company or there is consummated an agreement for the sale or disposition
by the Company of all or substantially all of the Company’s assets;
or
(e) the
occurrence of any transaction or series of transactions deemed by the Board to
constitute a change in control of the Company.
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Notwithstanding
the foregoing, (i) a “Change of Control” shall not be deemed to have occurred by
virtue of the consummation of any transaction or series of integrated
transactions immediately following which the holders of the common stock of the
Company immediately prior to such transaction or series of transactions continue
to have substantially the same proportionate ownership in an entity which owns
all or substantially all of the assets of the Company immediately following such
transaction or series of transactions, and (ii) a “Change of Control” shall not
occur for purposes of this Agreement as a result of any primary or secondary
offering of Company common stock to the general public through a registration
statement filed with the Securities and Exchange Commission.
Notwithstanding
the foregoing, to the extent that (i) any payment under this Agreement is
payable solely upon or following the occurrence of a Change of Control and (ii)
such payment is treated as “deferred compensation” for purposes of Code Section
409A, no event that would not qualify as a “change in the ownership of the
Company,” a “change in the effective control of the Company,” or a “change in
the ownership of a substantial portion of the assets of the Company” as such
terms are defined in Section 1.409A-3(i)(5) of the Treasury Regulations, shall
be treated as a “Change of Control under this Agreement.
“Code” means the Internal
Revenue Code of 1986, as amended.
“Committee” shall have the
meaning set forth in Section
4(a).
“Company” shall have the
meaning set forth in the introductory paragraph above.
“Confidential Information”
means (a) information of the Company or any Subsidiary thereof, to the extent
not considered a Trade Secret under applicable law, that (i) relates to the
Business of the Company or any Subsidiary thereof; (ii) possesses an element of
value to the Company or any Subsidiary thereof; (iii) is not generally known to
the Company’s competitors; and (iv) would damage the Company, or any Subsidiary
thereof, if disclosed, and (b) information of any third party provided to the
Company which the Company is obligated to treat as confidential. Confidential
Information includes, but is not limited to, future business plans, the
composition, description, schematic or design of products, future products or
equipment of the Company or any Subsidiary thereof, communication systems, audio
systems, system designs and related documentation, advertising or marketing
plans, information regarding independent contractors, Employees, clients and
Customers of the Company or any Subsidiary thereof, and information concerning
the Company’s financial structure and methods and procedures of
operation. Confidential Information shall not include any information
that is or becomes generally available to the public other than as a result of
an unauthorized disclosure, has been independently developed and disclosed by
others without violating this Agreement or the legal rights of any party or
otherwise enters the public domain through lawful means.
“Contact” means any interaction
between Executive and a Customer which (a) takes place in an effort to
establish, maintain and/or further a business relationship on behalf of the
Company, or any Subsidiary thereof, and (b) occurs during the last year of
Executive’s employment with the Company (or during Executive’s employment if
employed less than one (1) year).
“Customer” means any person or
entity to whom the Company, or any Subsidiary thereof, has sold or has solicited
to sell its products or services.
“Defense Costs” has the meaning
set forth in Section
13.
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“Disability” means a physical
or mental condition entitling Executive to benefits under the applicable
long-term disability plan of the Company or any its Subsidiaries, or if no such
plan exists, a “permanent and total disability” (within the meaning of Code
Section 22(e)(3)) or as determined by the Company in accordance with applicable
laws. Notwithstanding the foregoing, to the extent that (i) any payment under
this Agreement is payable solely upon the Executive’s Disability and (ii) such
payment is treated as “deferred compensation” for purposes of Code Section 409A,
Disability shall have the meaning provided in Section 1.409A-3(i)(4) of the
Treasury Regulations.
“Duties” means, solely for
purposes of Section
8 of this Agreement, functioning as the Company’s Senior Vice President –
Acquisitions, which includes the usual and customary duties of a Senior Vice
President – Acquisitions of a public corporation, such as assisting in the
efforts of the Company’s acquisition and development department and fulfilling
such other responsibilities as the Chief Executive Officer, Chief Investment
Officer and/or the Chief Financial Officer of the Company may assign to
Executive from time to time.
“Effective Date” shall have the
meaning set forth in the introductory paragraph above.
“Employee” means any person who
(a) is employed by the Company, or any Subsidiary thereof, at the time
Executive’s employment with the Company terminates; (b) was employed by the
Company, or any Subsidiary thereof, during the last year of Executive’s
employment with the Company (or during Executive’s employment if employed less
than one (1) year); or (c) is employed by the Company, or any Subsidiary
thereof, during the Restricted Period.
“Employment Period” shall have
the meaning set forth in Section
3.
“Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
“Executive” shall have the
meaning set forth in the introductory paragraph above.
“Good Reason” means (a) a
material diminution in Executive’s title, duties or responsibilities (provided,
however, that a requirement to utilize skills in addition to those utilized in
Executive’s current position, and/or a change in title and/or direct reports to
reflect the organizational structure of the successor entity following a Change
of Control, shall not in and of itself be considered a “material diminution” as
contemplated by this subsection (a)); (b) a reduction of ten percent (10%) or
more in Executive’s annual Base Salary; (c) a reduction of ten percent (10%) or
more in Executive’s annual target bonus opportunity (including the failure to
pay any bonus earned for any year in which a Change of Control occurs pursuant
to the terms of any applicable plan or arrangement in effect prior to such
Change of Control); or (d) the relocation of Executive’s principal place of
employment to a location more than fifty (50) miles from Executive’s principal
place of employment, except for required travel on the Company’s business to an
extent substantially consistent with Executive’s historical business travel
obligations. Executive’s continued employment shall not constitute
consent to, or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder, provided that Executive provides the Company
with a written notice of resignation within ninety (90) days following the
occurrence of the event constituting Good Reason and the Company shall have
failed to remedy such act or omission within thirty (30) days following its
receipt of such notice.
“Incentive Plans” means the
Company’s (i) 2004 Incentive Plan, as amended from time to time, (ii) 2011
Incentive Plan, as amended from time to time, (iii) 2010 Long-Term Incentive
Plan, and (iv) 2011 Long-Term Incentive Plan.
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“Licensed Materials” means any
materials that Executive utilizes for the benefit of the Company (or any
Subsidiary thereof), or delivers to the Company or the Company’s Customers,
which (a) do not constitute Work Product, (b) are created by Executive or of
which Executive is otherwise in lawful possession and (c) Executive may lawfully
utilize for the benefit of, or distribute to, the Company or the Company’s
Customers.
“Parties” shall have the
meaning set forth in the introductory paragraph above.
“Person” shall mean a “person”
as defined in Section 3(a)(9) of the Exchange Act, as modified and used in
Sections 13(d) and 14(d) thereof, except that such term shall not include (a)
the Company (or any Subsidiary thereof), (b) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company, (c) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (d) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
“Restricted Period” means the
period of time encompassing Executive’s employment with the Company and one (1)
year after termination of Executive’s employment with the Company.
“Separation Conditions” shall
have the meaning set forth in Section
6(c).
“Severance Delay Period” means
the period beginning on the date of the Executive’s termination of employment
with the Company and ending on the thirtieth day
thereafter. Notwithstanding the foregoing, in the event that the
Participant's termination of employment occurs in connection with an exit
incentive program or other employment termination program offered to a group or
class of employees, as defined under the Older Worker Benefit Protection Act, 29
U.S.C. Section 626, the Severance Delay Period shall mean the period beginning
on the date of the Executive’s termination of employment with the Company and
ending on the sixtieth day thereafter.
“Subsidiary” means a
corporation, partnership or other entity of which a majority of the voting
interests of such corporation, partnership or other entity are at the time owned
directly or indirectly through one or more intermediaries or Subsidiaries, or
both, by the Company.
“Territory” means the
continental United States.
“Trade Secrets” means
information of the Company (or any Subsidiary thereof), and its licensors,
suppliers, clients and Customers, without regard to form, including, but not
limited to, technical or non-technical data, a formula, a pattern, a
compilation, a program, a device, a method, a technique, a drawing, a process,
financial data, financial plans, product plans or a list of actual or potential
Customers or suppliers which is not commonly known by or available to the public
and which information (a) derives economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain economic value from its disclosure or use and
(b) is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.
“Without Cause” which shall
mean any termination of employment by the Company which is not defined in Section 5(a) through
Section 5(g) of
this Agreement.
“Work Product” means (a) any
data, databases, materials, documentation, computer programs, inventions
(whether or not patentable), designs and/or works of authorship, including but
not limited to, discoveries, ideas, concepts, properties, formulas,
compositions, methods, programs, procedures, systems, techniques, products,
improvements, innovations, writings, pictures, audio, video, images of Executive
and artistic works, and (b) any subject matter protected under patent,
copyright, proprietary database, trademark, trade secret, rights of publicity,
confidential information or other property rights, including all worldwide
rights therein, that is or was conceived, created or developed in whole or in
part by Executive while employed by the Company and that either (i) is created
within the scope of Executive’s employment; (ii) is based on, results from or is
suggested by any work performed within the scope of Executive’s employment and
is directly or indirectly related to the Business of the Company or a line of
business that the Company may reasonably be interested in pursuing;
(iii) has been or will be paid for by the Company; or (iv) was created or
improved in whole or in part by using the Company’s time, resources, data,
facilities or equipment.
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2. Employment and
Duties.
(a) The
Company shall employ Executive as Senior Vice President –
Acquisitions. Executive shall perform all duties that are consistent
with Executive’s position and that may otherwise be assigned to Executive by the
Company from time to time. Executive shall report directly to the
Chief Executive Officer or any other executive designated by the Board from time
to time.
(b) Executive
agrees to (i) devote all necessary working time required of Executive’s
position; (ii) devote Executive’s best efforts, skill and energies to promote
and advance the Business and/or interests of the Company and its Subsidiaries;
and (iii) fully perform Executive’s obligations under this
Agreement.
(c) During
Executive’s employment, Executive shall not render services to any other entity,
regardless of whether Executive receives compensation, without the prior written
consent of the Company. Executive may, however, (i) engage in
community, charitable and educational activities; (ii) manage Executive’s
personal investments; and (iii) with the prior written consent of the Board (or
a designated committee thereof), serve on corporate boards or committees,
provided that such activities do not conflict or interfere with the performance
of Executive’s obligations under this Agreement or conflict with the interests
of the Company.
(d) Executive
agrees to comply with the policies and procedures of the Company as may be
adopted and changed from time to time, including those described in the
Company’s employee handbook, Code of Business Conduct and Ethics and other
policies set forth by the Company from time to time. If this Agreement conflicts
with such policies or procedures, this Agreement will control.
(e) As
an officer of the Company, Executive owes a duty of care and loyalty to the
Company as well as a duty to perform such duties in a manner that is in the best
interests of the Company.
3.
Term. The
term of this Agreement shall be for a period of three (3) years, commencing on
the Effective Date and terminating on the third anniversary of the Effective
Date (the “Employment
Period”), provided, however, that the restrictive covenants applicable to
and all post-termination obligations of Executive contained in Section 8 of this
Agreement shall survive termination of this Agreement.
4. Compensation.
(a) During
the Employment Period, the Company will pay to Executive an annual base salary
(“Base Salary”) as
determined from time to time by the Compensation Committee of the Board (the
“Committee”), minus
applicable withholdings, payable in accordance with the Company’s normal payroll
practices. Executive’s Base Salary will be adjusted annually at the
discretion of the Committee based upon the performance of Executive and the
Company.
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(b) During
the Employment Period, Executive will be eligible to receive an annual bonus
targeted at fifty percent (50%) of Base Salary if, as determined by the
Committee in its sole discretion, Executive meets certain criteria established
from year to year by the Committee (the “Bonus”). Executive
will not receive any Bonus if Executive does not meet such
criteria. The Bonus will be subject to all applicable withholdings
and will be paid (to the extent earned) between January 1 and March 15 of the
year following the end of the year in which the Bonus was earned, unless
otherwise provided herein.
(c) During
the Employment Period, Executive shall be eligible to participate in all benefit
plans in effect for executives and Employees of the Company, subject to the
terms and conditions of such plans.
(d) During
the Employment Period, Executive shall be entitled to four (4) weeks of paid
vacation per calendar year.
(e) During
the Employment Period, Executive shall be entitled to receive all other fringe
benefits available to executives of the Company.
(f) During
the Employment Period, the Company will reimburse Executive for all approved
business expenses incurred by Executive in the performance of Executive’s duties
under this Agreement in accordance with the policies and procedures of the
Company.
5. Termination. This
Agreement may be terminated by any of the following events:
(a) Expiration
of the Employment Period;
(b) Mutual
written agreement between Executive and the Company at any time;
(c) Executive’s
death;
(d) Executive’s
Disability which renders Executive unable to perform the essential functions of
Executive’s job even with reasonable accommodation;
(e) By
the Company for Cause;
(f) By
Executive for Good Reason;
(g) Resignation
by Executive without Good Reason; or
(h) Without
Cause, which shall mean any termination of employment by the Company which is
not defined in Section
5(a) through Section 5(g)
above.
6. Company’s Post-Termination
Obligations.
(a) If
this Agreement terminates for the reasons set forth in Section 5(a), Section 5(b), Section 5(c), Section 5(d), Section 5(e) or Section 5(g) above,
then the Company will pay Executive (i) all accrued but unpaid wages, based on
Executive’s then current Base Salary, through the termination date; (ii) all
approved, but unreimbursed, business expenses, provided that a request for
reimbursement of business expenses is submitted in accordance with the Company’s
policies and submitted within five (5) business days of Executive’s termination
date; (iii) solely in the event this Agreement is terminated pursuant to Section 5(a), all
earned and accrued but unpaid bonuses, but only if Executive was employed for
the entire annual Bonus period; (iv) solely in the event this
Agreement is terminated pursuant to either Section 5(c) or Section 5(d) during
an annual Bonus period, all earned and accrued but unpaid bonuses prorated to
the date of Executive’s death or Disability; and (v) solely in the event this
Agreement is terminated pursuant to either Section 5(c) or Section 5(d), a
transition lump sum severance payment of $10,000. Amounts payable pursuant to
subparagraphs 6(a)(i), (ii) and (v) above shall be paid within thirty (30) days
of the Executive’s termination date and amounts payable pursuant to
subparagraphs 6(a)(iii) and (iv) shall be paid at the time the bonus would
otherwise be payable to the Executive pursuant to Section 4(b). The
Company shall have no other obligations to Executive, including under any
provision of this Agreement, Company policy or otherwise; however, Executive
shall continue to be bound by Section 8 and all
other post-termination obligations to which Executive is subject, including, but
not limited to, the obligations contained in this Agreement.
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(b) If
this Agreement terminates for any of the reasons set forth in Section 5(f) or
Section 5(h)
above, then the Company will pay Executive (i) all accrued but unpaid wages
through the termination date, based on Executive’s then current Base Salary;
(ii) a separation payment equal to twelve (12) months of Executive’s then
current Base Salary, to be paid over a period of twelve (12) months following
the expiration of the Severance Delay Period in accordance with the Company’s
regular payroll practices; (iii) all accrued but unpaid vacation through the
termination date, based on Executive’s then current Base Salary; (iv) all
approved, but unreimbursed, business expenses, provided that a request for
reimbursement of business expenses is submitted in accordance with the Company’s
policies and submitted within five (5) business days of Executive’s termination
date; (v) all earned and accrued but unpaid bonuses; and (vi) a transition lump
sum severance payment of $10,000. Amounts or benefits payable under
this Section 6(b) shall be paid or commence on the Company’s first regularly
scheduled payroll period occurring immediately following the expiration of the
Severance Delay Period. Except as set forth in this Section 6(b), the
Company shall have no other obligations to Executive.
(c) The
Company’s obligation to provide the payments set forth in Section 6(b)
above shall be conditioned upon the following (the “Separation
Conditions”):
(i) Executive’s
(or, in the case of Executive’s death or Disability, Executive’s estate or
trustee, as applicable) execution (and the expiration of any applicable
revocation period) of a separation agreement in a form prepared by the
Company prior to the
expiration of the Severance Delay Period, which will include a general release
from liability so that Executive will release the Company and its Subsidiaries
from any and all liability and claims of any kind as permitted by law;
and
(ii) Executive’s
compliance with the restrictive covenants (Section 8) and all
post-termination obligations, including, but not limited to, the obligations
contained in this Agreement.
(d) If
Executive does not execute (or revokes) an effective separation agreement as set
forth in Section
6(c) above prior to the expiration of
the Severance Delay Period (or if any applicable revocation period has not yet
ended prior to such time), the Company will not provide any payments or benefits
to Executive under Section
6(b). The Company’s obligation to make the separation payments
set forth in Section
6(b) shall terminate immediately upon any breach by Executive of any
post-termination obligations to which Executive is subject.
7. Change of
Control.
(a) Notwithstanding
anything to the contrary in the Incentive Plans or any award agreement, upon a
Change of Control, all of Executive’s outstanding unvested equity-based awards
(including, but not limited to, restricted stock and restricted stock units)
granted pursuant to the Incentive Plans, shall vest and become immediately
exercisable and unrestricted, without any action by the Board or any committee
thereof.
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(b) Notwithstanding
the provisions of Section 6, if, within
one (1) year following a Change of Control, the Company terminates Executive’s
employment Without Cause pursuant to Section 5(h), or
Executive resigns for Good Reason, then the Company will pay Executive the
following amounts:
(i) all
accrued but unpaid wages through the termination date, based on Executive’s then
current Base Salary;
(ii) a
separation payment equal to twelve (12) months of Executive’s then current Base
Salary, to be paid in a lump sum as provided below;
(iii) a
payment for all earned and accrued but unpaid bonuses;
(iv) a
payment for all approved, but unreimbursed, business expenses, provided that a
request for reimbursement of business expenses is submitted in accordance with
the Company’s policies and submitted within five (5) business days of
Executive’s termination date; and
(v) a
transition lump sum severance payment of $10,000.
(c) The
payments and benefits set forth in this Section 7 shall be
provided to Executive in lieu of any benefits to which Executive may be entitled
to receive under Section 6(b)
above and shall be
paid or commence on the Company’s first regularly scheduled payroll period
occurring immediately following the expiration of the Severance Delay Period,
provided, however, that Executive’s right to receive the separation payments and
benefits set forth in this Section 7 shall be
subject to the Separation Conditions set forth in Section 6(c)
above. The separation payments and benefits set forth in this Section 7 shall
constitute full satisfaction of the Company’s obligations under this Agreement,
any Company policy or otherwise.
8. Executive’s Post-Termination
Obligations.
(a) Return of
Materials. Upon the termination of Executive’s employment for
any reason, Executive shall return to the Company all of the Company’s property,
including, but not limited to, keys, passcards, credit cards, customer lists,
rolodexes, tapes, software, computer files, marketing and sales materials and
any other property, record, document or piece of equipment belonging to the
Company.
(b) Set-Off. If
Executive has any outstanding obligations to the Company upon the termination of
Executive’s employment for any reason, Executive hereby authorizes the Company
to deduct any amounts owed to the Company from Executive’s final paycheck and/or
any amounts that would otherwise be due to Executive, including under Section 6 or Section 7 above, but
only to the extent such set-off is made in accordance with Treasury Regulation
1.409A-3(j)(4)(xiii). No other set-off shall be permitted under this
Agreement.
(c) Non-Disparagement.
During Executive’s employment and upon the termination of Executive’s employment
with the Company for any reason, Executive shall not make any disparaging or
defamatory statements, whether written or verbal, regarding the
Company.
(d) Restrictive
Covenants. Executive acknowledges that the restrictions contained in this
Section 8 are
reasonable and necessary to protect the legitimate business interests of the
Company and will not impair or infringe upon Executive’s right to work or earn a
living after Executive’s employment with the Company
terminates.
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(e) Trade Secrets and
Confidential Information.
(i) Executive
represents and warrants that Executive (A) is not subject to any legal or
contractual duty or agreement that would prevent or prohibit Executive from
performing the duties contemplated by this Agreement or otherwise complying with
this Agreement, and (B) is not in breach of any legal or contractual duty or
agreement, including any agreement concerning trade secrets or confidential
information owned by any other party.
(ii) Executive
agrees that Executive will not (A) use, disclose or reverse engineer Trade
Secrets or Confidential Information for any purpose other than the Company’s
Business, except as authorized in writing by the Company; (B) during Executive’s
employment with the Company, use, disclose or reverse engineer (1) any
confidential information or trade secrets of any former employer or third party
or (2) any works of authorship developed in whole or in part by Executive during
any former employment or for any other party, unless authorized in writing by
the former employer or third party; or (C) upon Executive’s resignation or
termination with the Company (1) retain Trade Secrets or Confidential
Information, including any copies existing in any form (including electronic
form), which are in Executive’s possession or control or (2) destroy, delete or
alter Trade Secrets or Confidential Information without the Company’s prior
written consent.
(iii) The
obligations under this Section 8 shall
remain in effect as long as Trade Secrets and Confidential Information
constitute trade secrets or confidential information under applicable
law. The confidentiality, property and proprietary rights protections
available in this Agreement are in addition to, and not exclusive of, any and
all other rights to which the Company is entitled under federal and state law,
including, but not limited to, rights provided under copyright laws, trade
secret and confidential information laws and laws concerning fiduciary
duties.
(f)
Non-Competition. During
the Restricted Period, Executive agrees that Executive shall not perform
services which are substantially similar and/or equivalent to the Duties,
individually or on behalf of any person, firm, partnership, association,
business organization, corporation or entity engaged in the Business within the
Territory. The Parties agree and acknowledge that (i) the periods of
restriction and Territory of restriction contained in this Agreement are fair
and reasonable in that they are reasonably required for the protection of the
Company and that the Territory is the area in which Executive performs services
for the Company and (ii) by having access to information concerning Employees
and actual or prospective Customers of the Company or any of its Subsidiaries,
Executive shall obtain a competitive advantage as to the Company.
(g) Non-Solicitation of
Customers. During the Restricted Period, Executive will not,
directly or indirectly, solicit any Customer of the Company for the purpose of
providing any goods or services competitive with the Business within the
Territory. The restrictions set forth in this Section 8(g) apply
only to the Customers with whom Executive had Contact.
(h) Non-Recruitment of
Employees. During the Restricted Period, Executive will not,
directly or indirectly, solicit, recruit or induce any Employee to (i) terminate
his or her employment relationship with the Company or any of its Subsidiaries
or (ii) work for any other person or entity engaged in the
Business.
(i)
Post-Employment
Disclosure. During the Restricted Period, Executive shall
provide a copy of this Agreement to persons and/or entities for whom Executive
works or consults as an owner, partner, joint venturer, employee or independent
contractor. If, during the Restricted Period, Executive works or
consults for another person or entity as an owner, partner, joint venturer,
employee or independent contractor, Executive shall provide the Company with
such person or entity’s name, the nature of such person or entity’s business,
Executive’s job title and a general description of the services Executive will
provide.
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(j)
Resignation. Upon
the termination of Executive’s employment with the Company for any reason and
upon the request of the Company, Executive shall deliver to the Company a
written resignation from all offices, membership on the Board and fiduciary
positions in which Executive serves for the Company and each of its Subsidiaries
and Affiliates.
9. Work
Product. Executive’s employment duties may include creating,
developing and/or inventing in areas directly or indirectly related to the
Business of the Company or to a line of business that the Company may reasonably
be interested in pursuing. If ownership of all right, title and
interest to the legal rights in and to the Work Product will not vest
exclusively in the Company, then, without further consideration, Executive
assigns all presently-existing Work Product to the Company and agrees to assign,
and automatically assigns, all future Work Product to the
Company. The Company will have the right to obtain, and hold in its
own name, copyrights, patents, design registrations, proprietary database
rights, trademarks, rights of publicity and any other protection available in
the Work Product. At the Company’s request, Executive agrees to perform, during
or after Executive’s employment with the Company, any acts to transfer, perfect
and defend the Company’s ownership of the Work Product, including, but not
limited to (a) executing all documents (including a formal assignment to
the Company) necessary for filing an application or registration for protection
of the Work Product (an “Application”);
(b) explaining the nature of the Work Product to persons designated by the
Company; (c) reviewing Applications and other related papers; or (d)
providing any other assistance reasonably required for the orderly prosecution
of Applications. Executive agrees to provide the Company with a
written description of any Work Product in which Executive is involved (solely
or jointly with others) and the circumstances attendant to the creation of such
Work Product.
10. License. During
Executive’s employment and after Executive’s employment with the Company
terminates, Executive grants to the Company an irrevocable, nonexclusive,
worldwide, royalty-free license to (a) make, use, sell, copy, perform, display,
distribute or otherwise utilize copies of the Licensed Materials; (b) prepare,
use and distribute derivative works based upon the Licensed Materials; and (c)
authorize others to do the same. Executive shall notify the Company
in writing of any Licensed Materials Executive delivers to the
Company.
11. Release. During
Executive’s employment and after Executive’s employment with the Company
terminates, Executive consents to the Company’s use of Executive’s image,
likeness, voice or other characteristics in the Company’s products or
services. Executive releases the Company from any causes of action
that Executive has or may have arising out of the use, distribution, adaptation,
reproduction, broadcast or exhibition of such characteristics.
12. Injunctive
Relief. Executive agrees that, if Executive breaches Section 8 of this
Agreement, (a) the Company would suffer irreparable harm; (b) damages would be
difficult to determine, and money damages alone would be an inadequate remedy
for the injuries suffered by the Company; and (c) if the Company seeks
injunctive relief to enforce this Agreement, Executive hereby waives and will
not (i) assert any defense that the Company has an adequate remedy at law with
respect to the breach; (ii) require that the Company submit proof of the
economic value of any Trade Secret or Confidential Information; or (iii) require
the Company to post a bond or any other security. Nothing contained
in this Agreement shall limit the Company’s right to any other remedies at law
or in equity.
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13. Payment of Defense
Costs. If Executive is individually named as a defendant in a
lawsuit relating to or arising out of Executive’s employment with the Company,
then the Company agrees to pay the reasonable attorneys’ fees and expenses
Executive incurs in defending such lawsuit (the “Defense
Costs”). The Company will not pay any damages or any other
sums or relief for which Executive is held liable. If Executive is
held liable, then Executive agrees to reimburse the Company for all Defense
Costs the Company paid to Executive or on Executive’s behalf. The
Company’s obligation under this Section 13 shall not
apply to any claim or lawsuit brought by the Company against Executive. Payment
of the Defense Costs shall be the Company’s only obligation under this Section 13; provided,
however, that nothing in this Section 13 shall be
construed to limit either Party’s rights or obligations under any
indemnification agreement or the Company’s organizational documents, as
applicable
14. Clawback. Notwithstanding
anything contained herein to the contrary, any amounts paid or payable to
Executive pursuant to this Agreement or otherwise by the Company, including, but
not limited to, any equity compensation granted to Executive, may be subject to
forfeiture or repayment to the Company in accordance with Code Section 409A and
pursuant to any clawback policy as adopted by the Board from time to time, and
Executive hereby agrees to be bound by any such policy.
15. Severability. The
provisions of this Agreement are severable. If any provision of this
Agreement is determined to be unenforceable, in whole or in part, then such
provision shall be modified so as to be enforceable to the maximum extent
permitted by law. If such provision cannot be modified to be
enforceable, the provision shall be severed from this Agreement to the extent
unenforceable. The remaining provisions and any partially enforceable
provisions shall remain in full force and effect.
16. Attorneys’
Fees. In the event of litigation relating to this Agreement,
the prevailing Party shall be entitled to recover attorneys’ fees and costs of
litigation in addition to all other remedies available at law or in
equity.
17. Waiver. Either
Party’s failure to enforce any provision of this Agreement shall not act as a
waiver of that or any other provision. Either Party’s waiver of any
breach of this Agreement shall not act as a waiver of any other
breach.
18. Entire
Agreement. This Agreement constitutes the entire agreement
between the Parties concerning the subject matter of this
Agreement. This Agreement supersedes any prior communications,
agreements or understandings, whether oral or written, between the Parties
relating to the subject matter of this Agreement. Other than the
terms of this Agreement, no other representation, promise or agreement has been
made with Executive to cause Executive to sign this Agreement.
19. Amendments. This
Agreement may not be amended or modified except in a writing signed by both
Parties.
20. Successors and
Assigns. This Agreement shall be assignable to, and shall
inure to the benefit of, the Company’s successors and assigns, including,
without limitation, successors through merger, name change, consolidation or
sale of a majority of the Company’s stock or assets and shall be binding upon
Executive. Executive shall not have the right to assign Executive’s rights or
obligations under this Agreement. The covenants contained in Section 8 of this
Agreement shall survive the termination of Executive’s employment with the
Company, regardless of which Party causes the termination or the reason for the
termination.
21. Governing
Law. The laws of the State of Tennessee shall govern this
Agreement. If Tennessee’s conflict of law rules would apply another state’s
laws, the Parties agree that Tennessee law shall still govern.
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22. No Strict
Construction. If there is a dispute about the language of this
Agreement, the fact that one Party drafted this Agreement shall not be
considered in its interpretation.
23. Notice. Whenever
any notice is required, it shall be given in writing addressed as
follows:
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To
Company:
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Attention: Chief
Financial Officer
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000 Xxx
Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxx 00000
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To
Executive:
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The
address then maintained with respect to the Executive in the Company’s
records
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Notice shall be deemed given and
effective when deposited in the U.S. mail, sent to the receiving party by
electronic means or when actually received. Either Party may change
the address to which notices shall be delivered or mailed by notifying the other
party of such change in accordance with this Section.
24. Consent to Jurisdiction and
Venue. Executive agrees that any claim arising out of or
relating to this Agreement shall be brought in a state or federal court of
competent jurisdiction in Tennessee. Executive consents to the
personal jurisdiction of the state and/or federal courts located in
Tennessee. Executive waives (a) any objection to jurisdiction or
venue, or (b) any defense claiming lack of jurisdiction or improper venue in any
action brought in such courts.
25. Affirmation. Executive
acknowledges that Executive has carefully read this Agreement, Executive knows
and understands its terms and conditions and Executive has had the opportunity
to ask the Company any questions Executive may have had prior to signing this
Agreement.
26. Compliance with Code Section
409A and Other Applicable Provisions of the Code.
(a) It
is intended that (i) each payment or installment of payments provided under this
Agreement is a separate “payment” for purposes of Code Section 409A, and (ii)
that the payments satisfy, to the greatest extent possible, the exemptions from
the application of Code Section 409A, including those provided under Treasury
Regulations 1.409A-1(b)(4) (regarding short-term deferrals), 1.409A-1(b)(9)(iii)
(regarding the two-times, two (2) year exception) and 1.409A-1(b)(9)(v)
(regarding reimbursements and other separation pay). Notwithstanding
anything to the contrary herein, if the Company determines (i) that on the date
of Executive’s “separation from service” (as such term is defined under Treasury
Regulation 1.409A-1(h)) or at such other time that the Company determines to be
relevant, Executive is a “specified employee” (as such term is defined under
Treasury Regulation 1.409A-1(i)(1)) of the Company, and (ii) that any payments
to be provided to Executive pursuant to this Agreement are or may become subject
to the additional tax under Code Section 409A(a)(1)(B) or any other taxes or
penalties imposed under Code Section 409A if provided at the time otherwise
required under this Agreement, then such payments shall be delayed until the
date that is six (6) months after the date of Executive’s “separation from
service” (as such term is defined under Treasury Regulation 1.409A-1(h)) or, if
sooner, the date of Executive’s death. Any payments delayed pursuant
to this Section
26 shall be made in a lump sum on the first day of the seventh month
following Executive’s “separation from service” (as such term is defined under
Treasury Regulation 1.409A-1(h)) or, if sooner, the date of Executive’s
death. It is intended that Agreement shall comply with the provisions
of Code Section 409A and the Treasury Regulations relating thereto so as not to
subject Executive to the payment of additional taxes and interest under Code
Section 409A. In furtherance of this intent, this Agreement shall be
interpreted, operated, and administered in a manner consistent with these
intentions.
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(b) In
addition, to the extent that any reimbursement, fringe benefit or other, similar
plan or arrangement in which Executive participates during the term of
Executive’s employment under this Agreement or thereafter provides for a
“deferral of compensation” within the meaning of Code Section 409A, (i) the
amount eligible for reimbursement or payment under such plan or arrangement in
one calendar year may not affect the amount eligible for reimbursement or
payment in any other calendar year (except that a plan providing medical or
health benefits may impose a generally applicable limit on the amount that may
be reimbursed or paid), (ii) subject to any shorter time periods provided herein
or the applicable plans or arrangements, any reimbursement or payment of an
expense under such plan or arrangement must be made on or before the last day of
the calendar year following the calendar year in which the expense was incurred,
and (iii) the right to any reimbursement or in-kind benefit is not subject to
liquidation or exchange for another benefit.
(c) Notwithstanding
anything herein to the contrary, a termination of Executive’s employment shall
not be deemed to have occurred for purposes of any provision of this Agreement
providing for the payment of any amounts or benefits upon or following a
termination of employment unless such termination is also a “separation from
service” within the meaning of Code Section 409A (and Treasury Regulation
1.409A-1(h)) (which, by definition, includes a separation from any other entity
that would be deemed a single employer together with the Company for this
purpose under Code Section 409A (and Treasury Regulation 1.409A-1(h)), and for
purposes of any such provision of this Agreement, references to a “termination,”
“termination of employment,” “termination date,” or similar terms shall mean
“separation from service.”
(d) For
the avoidance of doubt, the Company shall pay any amounts that are due under
this Agreement following Executive’s termination of employment, death,
Disability or other event within the periods of time that are specified in this
Agreement, provided, however, that the Company, in its sole and absolute
discretion, shall determine the date or dates on which any such payment shall be
made during such specified period.
(e) By
accepting this Agreement, Executive hereby agrees and acknowledges that neither
the Company nor its Subsidiaries make any representations with respect to the
application of Code Section 409A to any tax, economic or legal consequences of
any payments payable to Executive hereunder. Further, by the
acceptance of this Agreement, Executive acknowledges that (i) Executive has
obtained independent tax advice regarding the application of Code Section 409A
to the payments due to Executive hereunder, (ii) Executive retains full
responsibility for the potential application of Code Section 409A to the tax and
legal consequences of payments payable to Executive hereunder and
(iii) the Company shall not indemnify or otherwise compensate Executive for any
violation of Code Section 409A that my occur in connection with this
Agreement. The parties agree to cooperate in good faith to amend such
documents and to take such actions as may be necessary or appropriate to comply
with Code Section 409A.
Signatures
on Following Page
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IN WITNESS WHEREOF, the Parties hereto
have executed this Agreement effective as of the Effective Date.
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By:
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/s/ Xxxxxxx X. Xxxxxxxx
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|
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Name:
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Xxxxxxx
X. Xxxxxxxx
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|
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Title:
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President
and Chief Executive Officer
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EXECUTIVE
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/s/ Xxxx Xxxxxxx
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Xxxx
Xxxxxxx
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Signature
Page to Executive Employment Agreement
