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Exhibit 10.1
EMPLOYMENT AGREEMENT
THE EMPLOYMENT AGREEMENT (the "Agreement"), made and entered into on
this 15th day of February, 1999, by and between XXXXXXX X. XXXXXXX, an
individual resident of the State of North Carolina (the "Executive"), SUMMIT
PROPERTIES INC., a Maryland corporation, and SUMMIT MANAGEMENT COMPANY, a
Maryland corporation. Summit Properties Inc. and Summit Management Company are
referred to herein collectively as the "Company," is hereby restated as follows
this 3rd day of April, 2001;
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:
1.
Employment
Subject to the terms of this Agreement, the Company hereby employs
Executive, and Executive hereby accepts such employment with the Company.
Executive shall serve as an officer of the Company in the capacity of Chief
Executive Officer of Summit Properties Inc. and Vice President of Summit
Management Company and shall have the duties, rights and responsibilities
normally associated with such positions consistent with the Bylaws of Summit
Properties Inc. and Summit Management Company, respectively, together with such
other reasonable duties relating to the operation of the business of the Company
and its affiliates as may be assigned to him from time to time by the Board of
Directors of Summit Properties Inc. (the "Board") or as may otherwise be
provided in such Bylaws. Through June 30, 2001 Executive shall devote his
business time, skills and efforts to rendering services on behalf of the Company
and its affiliates and shall exercise such care as is customarily required by
executives undertaking similar duties for entities similar to the Company.
Effective July 1, 2001, Executive agrees to resign from all of his executive
positions with the Company, but Executive shall remain an employee and shall
provide such services as requested by the Board or the Chief Executive Officer
of Summit Properties Inc. from time to time. The Company acknowledges that
effective July 1, 2001, (i) Executive will not be required to devote his
full-time during normal business hours to the business and affairs of the
Company and that (ii) Executive intends to pursue other business interests
during the Term of this Agreement subject to the restrictions of a
non-competition agreement between Executive and the Company dated as of February
15, 2000 (the "Noncompetition Agreement").
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2.
Compensation; Expenses
2.1 Base Salary. Executive's current Base Salary is Four Hundred Forty
Thousand dollars ($440,000.00) per annum and will remain at this level
through June 30, 2001. Effective July 1, 2001, Executive's Base Salary
shall be reduced to Two Hundred Twenty Thousand dollars ($220,000.00)
per annum. Effective January 1, 2002 and for the balance of the Term,
Executive's Base Salary shall be reduced to Two Hundred Thousand
dollars ($200,000.00) per annum unless Executive ceases to be an
employee member of the Board of Directors of the Company, in which case
Executive's base salary shall be reduced to one hundred seventy five
thousand dollars ($175,000) per annum. The Base Salary, less all
applicable withholding taxes, shall be paid to Executive in accordance
with the payroll procedures in effect with respect to officers of the
Company.
2.2 Incentive Compensation. In addition to the Base Salary payable to
Executive pursuant to Paragraph 2.1 and any special compensatory
arrangements which the Company provides for Executive, Executive is
currently entitled to participate in any incentive compensation plans
in effect with respect to senior 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. Effective January
1, 2002, Executive shall no longer be eligible to participate in such
plans for senior executive officers with respect to his service on and
after January 1, 2002.
2.3 Stock Options. Executive shall at the discretion of the Board be
entitled to participate in employee stock option plans from time to
time established for the benefit of employees of the Company in
accordance with the terms and conditions of such plans. So long as
Executive remains a member of the Board, the Company shall use
reasonable efforts in recommending to the Board the grant of options to
Executive in such amounts and at such times as those options received
by non-employee members of the Board. All existing equity based
incentives held by Executive shall remain in place and continue with
their current vesting schedule.
2.4 Expenses. Executive shall be reimbursed for all reasonable business
related expenses incurred by Executive at the request of or on behalf
of the Company.
2.5 Participation in Employee Benefit Plans. Executive shall be 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 Office Space and Secretarial and MIS Support. During the Term of this
Agreement, Executive shall have the use of his current or comparable
office space, comparable secretarial and comparable MIS support at the
expense of the Company.
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2.7 Vacation. In addition to Company holidays, Executive is currently
entitled to receive such paid vacation time each year during the term
of this Agreement consistent with vacation policies of the Company for
its executive officers. Said paid vacation time shall initially be
twenty days. Any unused vacation days in any year may not be carried
over to subsequent years, and Executive shall receive no additional
compensation for any unused vacation days. Effective January 1, 2002,
Executive shall be subject to the vacation policies of the Company for
employees who are not executive officers.
2.8 Perquisites. Executive shall be entitled to receive such individual
perquisites as are consistent with the Company's policies applicable to
its executive officers until December 31, 2001.
3.
Term of Employment
3.1 Term. The Term of this Agreement shall run until December 31, 2011.
Subject to the provisions of Section 4 below, upon twenty (20) business
days after written notice is given to the other party by either the
Company or Employee that the employment relationship shall terminate.
Such termination notice may be given by either party without cause and
for any or no reason.
4.
Compensation upon Termination of Employment
In the event Executive's employment with the Company is terminated; 1)
by the Company or Executive for any reason prior to the expiration of the Term
or, 2) upon expiration of the Term, Executive shall be entitled to receive the
following:
(i) Base Salary. The Company shall continue to pay
Executive's Base Salary for the remainder of the Term
to the extent termination has occurred prior to the
expiration of the Term.
(ii) Stock Options. All stock options and restricted stock
held by Executive shall become fully vested upon his
termination of employment, and subject to the terms
of the Company's Amended and Restated 1994 Stock
Option and Incentive Plan, all such stock options
shall remain outstanding for the remainder of their
original terms.
(iii) Stock Loans. Any loan from the Company to Executive
pursuant to the Company's Employee Loan Plan shall
continue in place for the remainder of its term.
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(iv) Employee Benefit Plans. If termination occurs prior
to the end of the Term, Executive and, if applicable,
eligible dependents shall continue to participate in
the Company's health, dental, disability, and life
plans for the remainder of the Term on the same terms
and conditions as an active employee. At the end of
the Term, Executive may elect to continue in the
Company's life insurance plan for his life, and
Executive and eligible dependents may elect to
continue in the Company's health and dental plans
until the last to die of him and his spouse at a cost
no greater than the group rates applicable to active
employees in effect from time to time.
Notwithstanding the foregoing, Executive's
continuation in the foregoing plans is subject to the
ability of the Company to make such coverage
available on a commercially reasonable basis.
(v) Office Space and Secretarial and MIS Support. For the
remainder of his life, Executive shall continue to
have the use of his then current or comparable office
space, comparable secretarial and comparable MIS
support at the expense of the Company.
5.
Miscellaneous
5.1. Binding Effect. This Agreement shall inure to the benefit of 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; and further provided that the
Company shall not be entitled to assign or delegate any of its rights
or obligations hereunder except to a corporation, partnership or other
business entity that is, directly or indirectly, controlled by or under
common control with Summit Properties Inc.
5.2. Construction of Agreement. No provision of this Agreement or any
related document shall be construed against or interpreted to the
disadvantage or 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.
5.3. Amendment; Waiver. Except as otherwise expressly provided in this
Agreement, no amendment, modification or discharge of this Agreement
shall be valid or binding unless set forth in writing and duly executed
by each of the parties hereto. Any waiver by an party or consent by any
party to any variation from any provision of this Agreement shall be
valid only if in writing and only in the specific instance in which it
is given, and no such waiver or consent shall be construed as a waiver
of any other provision or as a consent with respect to any similar
instance or circumstance.
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5.4. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
5.5. Survival of Agreements. All covenants and agreements made herein shall
survive the execution and delivery of this Agreement and the
termination of Executive's employment hereunder for any reason.
5.6. Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
5.7. Notices. All notices, requests, consents and other 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:
Xxxxxxx X. Xxxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
(b) If to the Company, addressed to:
Summit Properties Inc.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
5.8. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
5.9. Entire Agreement. This Agreement, together with the Noncompetition
Agreement, Indemnification Agreement, and Executive Severance
Agreement, which said agreement shall terminate on June 30, 2001,
constitute the entire agreement of the parties with respect to the
subject matter hereof and upon the date first written above, 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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
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SUMMIT PROPERTIES INC.
By: XXXXXX X. XxXXXXX
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Name: Xxxxxx X. XxXxxxx
Title: President
SUMMIT MANAGEMENT COMPANY
By: /S/ XXXXXX X. XxXXXXX
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Name: Xxxxxx X. XxXxxxx
Title: Vice President
Collectively, the "Company"
/S/ XXXXXXX X. XXXXXXX [SEAL]
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Xxxxxxx X. Xxxxxxx
"Executive"
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