EXHIBIT 10.9
J. XXXXXXX XXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of January
1, 1997, by and between COLUMBUS REALTY TRUST, a Texas real estate investment
trust with offices at 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 (the
"Company") and J. Xxxxxxx Xxxxx, an individual residing at 0000 Xxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxx 00000 (the "Executive").
WHEREAS, the Executive is currently employed by the Company as its Senior
Vice President and Treasurer;
WHEREAS, the Company desires to continue to employ the Executive, and the
Executive desires to continue to be employed by the Company; and
WHEREAS, this Agreement shall supersede and replace all prior employment
agreements between the Company and the Executive.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein and for other good and valuable consideration
(including, without limitation, the award of restricted Common Shares
contemplated herein), the adequacy and receipt of which are hereby acknowledged,
the parties hereto agree as follows:
1. Employment. The Company hereby agrees to employ the Executive, and the
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Executive hereby agrees to be employed by the Company, for a term (the
"Employment Period") commencing on the date hereof and expiring on December 31,
1999 (the "Expiration Date"); provided that such Expiration Date shall
automatically be extended to December 31, 2000 and each December 31 thereafter,
if written notice is not given by Executive to the Company or by the Company to
the Executive of such party's intent not to extend or renew this Agreement at
least twelve (12) months prior to the Expiration Date (as such date may have
been previously extended pursuant to this Section 1).
2. Duties and Responsibilities. During the Employment Period, the
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Executive shall devote his best efforts and substantially all of his business
time, skill and attention to the business of the Company. Executive shall hold
the offices of Senior Vice President and Treasurer of the Company and shall,
during the Employment Period, hold such additional offices to which Executive
may be elected by the Board of Trust Managers of the Company (the "Board").
Executive shall perform such duties as may, from time to time be specifically
enumerated by the Board, the Chairman of the Board, Chief Executive Officer,
Chief Operating Officer or any other executive officer of the Company; provided
that Executive's duties shall not be materially different than those typically
held by other comparable officers of real estate investment trusts similar to
the Company. The foregoing is not intended to preclude the Executive from
owning and managing personal
investments, including real estate investments, subject to the restrictions set
forth in Paragraph 11 hereof and provided that the time devoted to such
activities shall not be material and shall not detract from the performance of
the Executive's duties hereunder.
3. Compensation.
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(a) Annual Base Salary. For all services rendered by the Executive
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pursuant to this Agreement, the Company shall pay to the Executive an
annual base salary in the amount of $150,000 (which may consist, in part,
of restricted Common Shares as contemplated below) for the period from the
date hereof through December 31, 1997 (as adjusted from time to time, the
"Annual Base Salary"). Thereafter, the Annual Base Salary may be increased
as determined by the Executive Compensation Committee (herein so called) of
the Board in its sole discretion. In no event shall the Annual Base Salary
be reduced. All such compensation shall be paid bi-weekly or at such other
regular intervals, not less frequently than monthly, as the Company may
establish from time to time for executive employees of the Company. In
each calendar year during the term hereof, the Company may issue to
Executive, in satisfaction of a portion of Executive's Annual Base Salary,
restricted common shares of beneficial interest of the Company, par value
$.01 per share (the "Common Shares"), having a fair market value of up to
$25,000, determined as of the date of grant (based upon the average closing
price of the Company's Common Shares on the New York Stock Exchange during
the 30-day period preceding the date of grant) and without taking in
account any conditions, restrictions or forfeiture provisions applicable to
the restricted Common Shares to be awarded to Executive. Any such award of
restricted Common Shares shall be made on such date during the first
quarter of the applicable calendar year as determined by the Board or the
committee administering any plan pursuant to which such restricted Common
Shares may be issued. The date of grant and the terms, conditions,
restrictions and forfeiture provisions applicable to such Common Shares
shall be set forth in a written award agreement evidencing such grant which
shall contain substantially the same terms and conditions as contained in
the Award Agreement dated January 8, 1996, awarding Executive 2,324
restricted Common Shares. Any such award of restricted Common Shares in
any calendar year shall reduce the cash portion of the Annual Base Salary
payable for such calendar year by an amount equal to the fair market value
(determined as set forth above) of the restricted Common Shares issued.
(b) Bonus. In addition to the compensation set forth in Paragraph
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3(a) above, the Executive may be awarded such bonus for each calendar year
of his employment hereunder as the Executive Compensation Committee shall
determine in their sole discretion. In determining such bonus, the
Executive understands that the Executive Compensation Committee will
consider, without limitation, the following factors with respect to the
applicable calendar year: the financial
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performance, business performance and growth of the Company and the
Executive's department during such period; whether Executive's department
has satisfied or achieved specified goals; Executive's responsibilities as
an officer of the Company (including his participation in transactions of
particular financial or business significance to the Company) during such
period; the total compensation package paid to executive officers having
similar responsibilities as the Executive who are employed by real estate
investment trusts which are similar to the Company; and such other factors
as the Executive Compensation Committee may deem appropriate in its sole
discretion.
(c) Withholding. The Company shall have the right to deduct and
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withhold from such compensation all social security and other federal,
state and local taxes and charges which currently are or which hereafter
may be required by law to be so deducted and withheld.
(d) Expenses. The Company shall promptly reimburse the Executive for
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all out-of-pocket expenses actually and necessarily incurred by him in the
conduct of the business of the Company against reasonable substantiation
submitted with respect thereto.
4. Benefits. The Executive shall be entitled to the following benefits:
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(a) participation in the Company's Profit Sharing Plan, Share Option
Plan, Management Incentive Plan, Employee Stock Purchase Plan and other
benefit plans made generally available to executives of the Company;
(b) participation in any health insurance, disability insurance,
group life insurance or other welfare benefit programs made generally
available to executives of the Company; and
(c) paid vacation each year, to be taken at such times that are
consistent with the reasonable business needs of the Company. All vacation
shall be subject to the policies and procedures of the Company.
5. Indemnification. The Company shall indemnify the Executive in the
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performance of his duties pursuant to the Amended and Restated Bylaws of the
Company and to the fullest extent allowed by applicable law.
6. Termination of the Agreement.
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(a) Disability. If the Executive shall fail, because of illness or
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incapacity, to render the services contemplated by this Agreement for six
successive months, the Board may determine, on the basis of the advice of
an independent qualified physician, that the Executive has become disabled.
If within thirty (30) days after
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the date on which written notice of such determination is given to the
Executive, the Executive shall not have returned to the full-time
performance of his duties hereunder, the Company may terminate this
Agreement and the employment of the Executive hereunder in accordance with
Paragraph 8 hereof.
(b) Death. Except as otherwise provided in this Agreement, if the
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Executive shall die during the term of this Agreement, this Agreement shall
be deemed to have been terminated as of the date of death of the Executive.
(c) For Cause. The Company, by notice to the Executive, may terminate
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this Agreement prior to the Expiration Date for Cause (as hereafter
defined). As used herein, "Cause" shall mean (i) the continued failure by
the Executive to substantially perform his duties hereunder (other than any
such failure resulting from the Executive's incapacity due to physical or
mental illness) for a period of thirty (30) days after a written demand for
performance is delivered to the Executive by the Company, specifically
identifying the manner in which the Company believes that the Executive has
not satisfactorily performed his duties, (ii) the engaging by the Executive
in misconduct which is injurious to the Company, monetarily or otherwise or
(iii) the violation by the Executive of the provisions of Paragraphs 9, 10
or 11 hereof.
(d) For Good Reason. The Executive may terminate this Agreement prior
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to the Expiration Date for "Good Reason" if any of the following events
occurs without the Executive's express written consent:
(i) any demotion, material change of Executive's title or any
diminution, limitation or restriction on Executive's powers or duties
contemplated by Paragraph 2 above, in each case, without Executive's
prior written consent;
(ii) a reduction in the Executive's Annual Base Salary or any
material reduction in other benefits (except for bonuses or similar
discretionary payments) as in effect at the time in question, or any
other failure by the Company to comply with Paragraph 3 hereof;
(iii) the failure of the Company to obtain a satisfactory
agreement from any successor to assume and agree to perform this
Agreement, as contemplated in Paragraph 15 hereof; or
(iv) any requirement by the Company that Executive relocate
outside of the Dallas/Fort Worth metropolitan area or any requirement
that Executive perform all or substantially all of his duties,
consistently over any six (6) month period, outside of the Dallas/Fort
Worth metropolitan area.
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7. Date of Termination, Etc. "Date of Termination" shall mean the date
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Executive's employment is terminated pursuant to Paragraph 6 above.
8. Compensation Upon Termination or During Disability.
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(a) Disability or Death. During any period that the Executive fails
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to perform his duties hereunder as a result of incapacity due to physical
or mental illness, the Executive shall continue to receive his Annual Base
Salary at the rate in effect at the commencement of any such period until
his employment is terminated pursuant to Paragraph 6(a) hereof, together
with the average prorata bonus payable pursuant to Paragraph 3(b). If the
Executive's employment shall be terminated by reason of the Executive's
death, the Annual Base Salary together with the average prorata bonus
payable pursuant to Paragraph 3(b) which has accrued through the Date of
Termination shall be paid to the Executive's estate or personal
representative. Following termination pursuant to Paragraph 6(a) or
Paragraph 6(b) hereof, the Company will pay to the Executive, his estate or
personal representative 2.99 times the Executive's Total Compensation (as
defined below) for the immediately preceding twelve-month period to and
including the date of termination. "Total Compensation" shall mean
compensation of any nature and from any source, including, without
limitation, (i) Annual Base Salary, (ii) bonus awards (whether cash or
noncash), (iii) the fair market value of any common shares or other shares
of capital stock, stock options or other equity based compensation awarded
to the Executive during the relevant twelve (12) month period, whether or
not vested, restricted or subject to forfeiture (the fair market value
which shall be determined as of the date of grant without taking into
consideration any provisions as to vesting or forfeiture or provisions as
to restriction on transfer) and (iv) all perquisites paid, awarded or
otherwise available to the Executive during the relevant period. The
aforesaid amount shall be payable, at the option of the Executive, his
estate or personal representative, either (A) in full immediately upon such
termination or (B) semi-monthly over the remainder of the Employment
Period.
(b) For Cause. If the Executive's employment shall be terminated, at
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any time prior to the Expiration Date, for Cause or by him other than for
Good Reason, the Executive shall be paid the Executive's Annual Base Salary
through the Date of Termination at the rate in effect at the time Notice of
Termination is given. The Company shall thereafter have no further
obligations to the Executive under this Agreement.
(c) Other than for Cause. If the Executive's employment shall be
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terminated by the Company other than (i) for Cause or (ii) upon death or
disability, the Executive shall be paid the Executive's Annual Base Salary
plus the average prorata bonus payable pursuant to Paragraph 3(b) through
the Date of Termination. In addition, the Company will pay to the
Executive 2.99 times the
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Executive's Total Compensation for the immediately preceding twelve-month
period. The aforesaid amount shall be payable, at the option of the
Executive, either (i) in full immediately upon such termination or (ii)
semi-monthly over the remainder of the Employment Period. In addition, the
Executive shall be entitled, at the option of the Executive, (i) to
exercise any options to purchase Shares granted to the Executive, whether
or not then vested, in accordance with the terms of the applicable share
option agreement or plan, or (ii) to retain any Shares awarded to the
Executive whether or not vested on the Date of Termination.
(d) For Good Reason. If the Executive's employment shall be
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terminated by the Executive for Good Reason, the Executive shall be paid
the Executive's Annual Base Salary plus the average prorata bonus payable
pursuant to Paragraph 3(b) through the Date of Termination. In addition,
the Company will pay to the Executive the lesser of (i) two times the
Executive's Total Compensation for the immediately preceding twelve-month
period or (ii) the Executive's Total Compensation for the preceding twelve-
month period multiplied by the number of years, including any fractions
thereof, remaining until the Expiration Date. The Executive shall be
entitled, at the option of the Executive, (i) to exercise any options to
purchase Shares granted to the Executive whether or not then vested, in
accordance with the terms of the applicable share option agreement or Plan
and (ii) to retain any Shares awarded to the Executive (whether or not then
vested).
(e) Other Benefits. In addition to all other amounts payable to the
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Executive under this Paragraph 8, the Executive shall be entitled to
receive all retirement benefits payable to him under the Company's benefit
plans applicable to him and any other plan or agreement relating to
retirement benefits as in effect on the Date of Termination.
(f) No Requirement to Mitigate. The Executive shall not be required
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to mitigate the amount of any payment provided for in this Paragraph 8 by
seeking other employment or otherwise, nor shall the amount of any payment
or benefit provided for in this Paragraph 8 be reduced by any compensation
earned by him as the result of employment by, or any services provided to,
another employer (whether or not a successor to the Company) or by
retirement benefits after the Date of Termination, or otherwise.
9. Confidential Information. The Executive understands and acknowledges
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that during his employment with the Company, he will be exposed to Confidential
Information (defined below), all of which is proprietary and which will
rightfully belong to the Company. The Executive will hold in a fiduciary
capacity for the benefit of the Company all such Confidential Information
obtained by the Executive during his employment with the Company and will not,
directly or indirectly, at any time, either during or after his employment with
the Company, without the Company's prior written consent, use, publish,
disseminate, or otherwise disclose any of such Confidential Information to any
individual
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or entity other than the Company or its employees, except as required in the
performance of his duties for the Company. The Executive shall take all
reasonable steps to safeguard such Confidential Information and to protect such
Confidential Information against disclosure, misuse, loss or theft. The term
"Confidential Information" shall mean any information not generally known in the
relevant trade or industry which was (i) obtained from the Company or its
predecessors or (ii) learned, discovered, developed, conceived, originated or
prepared during or as a result of the performance of any services by the
Executive on behalf of the Company or its predecessors.
10. Return of Documents. All writings, records, and other documents and
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things containing any Confidential Information shall be the exclusive property
of the Company, shall not be copied, summarized, extracted from, or removed from
the premises of the Company, except in pursuit of the business of the Company
and at the direction of the Company, and shall be delivered to the Company,
without retaining any copies, upon the termination of the Executive's employment
or at any time as requested by the Company.
11. Noncompete. The Executive agrees that:
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(a) At all times during which the Executive is employed by the
Company, the Executive agrees to conduct all multifamily residential
development, construction, acquisition and management activities through
the Company. In addition, if Executive terminates his employment hereunder
prior to the Expiration Date without Good Reason or the Company terminates
Executive's employment hereunder for Cause, then beginning on the Date of
Termination and for a one (1) year period thereafter (such one (1) year
period, the "Noncompetition Period"), the Executive shall not, within
twenty (20) miles of (i) any of the multifamily residential properties
owned by the Company on the first day of the Noncompetition Period, (ii)
any tract of land owned by the Company with respect to which the Company
has undertaken substantial development activities and on which the Company
intends, as of the first day of the Noncompetition Period, to develop a
multifamily residential property or (iii) any property which, prior to the
first day of the Noncompetition Period, the Company had entered into a
definitive purchase agreement to acquire or had proposed to acquire for the
purposes of development thereof (the areas described in (i), (ii) and (iii)
above being collectively referred to herein as the "Restricted Area"),
directly or indirectly, engage in, or own, invest in, manage or control any
venture or enterprise engaged in, any multifamily residential real estate
development, construction, acquisition or management activities. Nothing
herein shall prohibit the Executive from being a passive owner of not more
than five percent (5%) of the outstanding stock of any class of securities
of a corporation or other entity engaged in such business which is
publicly traded, so long as he has no active participation in the business
of such corporation or other entity.
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(b) If, at the time of enforcement of this Paragraph 11, a court shall
hold that the duration, scope, area or other restrictions stated herein are
unreasonable, the parties agree that reasonable maximum duration, scope,
area or other restrictions may be substituted by such court for the stated
duration, scope, area or other restrictions.
12. Remedies. The parties hereto agree that both the Company and the
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Executive would suffer irreparable harm from a breach by the other party of any
of the covenants or agreements contained herein. Therefore, in the event of the
actual or threatened breach by either party of any of the provisions of this
Agreement, the other party may, in addition and supplementary to other rights
and remedies existing in its favor, apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive or other
relief in order to enforce or prevent any violation of the provisions hereof.
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
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ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES.
14. Entire Agreement. This Agreement sets forth the entire agreement of
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the parties with respect to the subject matter hereof and is intended to
supersede all prior employment negotiations, understandings and agreements.
Notwithstanding the foregoing, no provisions of this Agreement are intended or
shall be deemed to supersede, alter, impair or detract from, in any manner, any
rights or benefits awarded to Executive or to which Executive may otherwise be
entitled pursuant to any grant or award by the Company to the Executive of Stock
Options, restricted Common Shares or other rights with respect to securities of
the Company, whether now existing or hereafter granted.
15. Successors; Binding Agreement.
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(a) This Agreement shall inure to the benefit of and be enforceable by
the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
the Executive should die while any amount would still be payable to him
hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this
Agreement to the Executive's devisee, legatee or other designee or, if
there is no such designee, to the Executive's estate.
(b) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree in writing to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it if
no such succession had taken place. Failure of the Company to obtain and
deliver to Executive such assumption and
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agreement prior to (but effective only upon) such succession shall be a
breach of this Agreement, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination. As used in this Agreement, "Company" shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this
Agreement, expressly, by operation of law, or otherwise.
16. Notices. All notices provided for in this Agreement shall be in
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writing, and shall be deemed to have been duly given when delivered personally
to the party to receive the same, when given by telex, telegram or mailgram, or
when mailed first class postage prepaid, by registered or certified mail, return
receipt requested, addressed to the party to receive the same at his or its
address above set forth, or such other address as the party to receive the same
shall have specified by written notice given in the manner provided for in this
Paragraph 16. All notices shall be deemed to have been given as of the date of
personal delivery, transmittal or mailing thereof.
17. Survival. The Company's obligations under Paragraph 8 shall survive
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the termination of this Agreement. The Executive's obligations under Paragraphs
9, 10 and 11 shall survive the termination of this Agreement.
18. Severability. If any provision in this Agreement is determined to be
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invalid, it shall not affect the validity or enforceability of any of the other
remaining provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COLUMBUS REALTY TRUST:
By: /s/ Will Xxxxxxx
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Name: Will Xxxxxxx
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Title: Chief Operating Officer
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EXECUTIVE:
/s/ J. Xxxxxxx Xxxxx
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J. Xxxxxxx Xxxxx
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