1
Exhibit 10
EMPLOYMENT AGREEMENT
BETWEEN
XXXXXXX X. XXXXX
AND
EASTGROUP PROPERTY SERVICES, INC.
A WHOLLY-OWNED SUBSIDIARY OF EASTGROUP PROPERTIES, INC.
DATED AS OF MARCH 1, 1998
2
EMPLOYMENT AGREEMENT
This Agreement dated as of the 1st day of March 1998, is by and between
XXXXXXX X. XXXXX, residing at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000
("Employee"), and EASTGROUP PROPERTY SERVICES, INC., a Florida corporation
with its principal office at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx
Xxxxxxx, XX 00000 ("Services"). Services is a wholly-owned subsidiary of
EastGroup Properties, Inc. ("EastGroup").
RECITALS:
A. On the date hereof Ensign Properties, Inc. ("Ensign"), a Florida
corporation, pursuant to an Agreement and Plan of Merger among EastGroup,
Services, Employee, and the other persons identified therein, has been merged
with a wholly-owned subsidiary of EastGroup and changed its name to EastGroup
Property Services, Inc.
B. Employee has been President of Ensign for many years.
C. EastGroup and Services desire that Employee continue as President of
Services and Employee desires to continue in such capacity. Employee has
agreed, at EastGroup and Services's request, to enter into a confidentiality
and non-competition agreement as consideration for the payment of certain
compensation as hereinafter provided.
3
TERMS OF AGREEMENT:
-------------------
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT PERIOD.
(a) INITIAL EMPLOYMENT PERIOD. Services hereby agrees to employ
Employee and Employee hereby agrees to accept the employment by Services on
the terms and conditions set forth herein for a period of five (5) years
commencing on March 1, 1998 and ending on February 28, 2003 (the "Initial
Employment Period") subject to renewal and early termination as hereinafter
provided.
(b) RENEWAL PERIODS. Employee's employment hereunder shall be
automatically renewed for successive one (1) year terms, unless, sixty (60)
days prior to the end of the then current term, either party provides written
notice to the other that it does not intend to renew this Agreement. The
Initial Employment Period and any renewals thereof, collectively are referred
to as the "Employment Period".
2
4
1. POSITION AND RESPONSIBILITIES. Employee shall be President and
Chief Operating Officer of Services and the Senior Vice President for Real
Estate Services of EastGroup and shall have such authority as is appropriate
to carry out his duties as President. Consistent with Employee's job title,
Employee shall also have the responsibility of advising and assisting
EastGroup in connection with the management, development and leasing of its
properties. Employee shall also perform such duties as shall be consistent
with Employee's job title and as may be reasonably requested from time to time
by the Chief Executive Officer of Services. Employee shall perform his duties
and responsibilities from Services' principal office in Orlando, Florida.
Employee agrees that while employed by Services he will devote 100% of his
full business time during customary business hours, applying his attention,
skill and best efforts to the faithful performance of his duties hereunder.
Employee agrees that in the performance of such duties and in all aspects of
employment, Employee will comply with the policies, standards, work rules and
regulations established from time to time by the Board of Directors of
Services. Notwithstanding the foregoing to the contrary, the foregoing
provisions of this Section 2 shall not prohibit Employee from performing
services with respect to the properties or entities referenced in the last
paragraph of Section 5(b)(ii), so long as such services do not interfere with
the provision of services hereunder by Employee to Services or EastGroup.
3
5
2. COMPENSATION AND OTHER BENEFITS.
(a) SALARY. For the performance of his duties under this
Agreement, Services shall pay Employee a fixed salary at the rate of $150,000
per annum (the "Salary") (subject to applicable FICA, federal and state income
tax, withholding and other payroll taxes). The Salary shall be payable in
accordance with Services's customary payroll procedure for its other
executives, but not less frequently than monthly. The Salary shall be
increased annually, effective as of the first day of each consecutive 12-month
following the first 12 months of the term of this Agreement by the greater of
(i) 4% or (ii) a fraction the numerator of which shall be the most recently
determined cost-of-living index when the calculation is made, and the
denominator of which shall be the most recently determined cost-of-living
index when the calculation was made, or would have been made, in the prior
year. The cost-of-living indices required for this calculation shall be
obtained from the Consumer's Price Index published by the Bureau of Labor
Statistics of the United States Department of Labor. In any year in which this
index is not available, Services shall ascertain and utilize some similar
criterion and, if necessary, shall establish retroactively an index figure for
the denominator of the fraction consistent with the intent hereof.
(b) ANNUAL BONUS. For each year beginning on March 1 and ending on
February during the Employment Period, the Employee shall be entitled to a
bonus (the "Bonus") calculated in accordance with the provisions of this
subsection, each such bonus to be fully paid within 90 days of the end of each
annual period to which such Bonus relates. The Bonus will be based upon
Services' "Profits from Development Activities" (as defined
4
6
below) and shall be based upon the following schedule:
AMOUNT OF PROFITS FROM PERCENTAGE PAID
DEVELOPMENT ACTIVITIES TO EMPLOYEE AS BONUS
---------------------- --------------------
Up to $700,000 50%
Next $300,000 25%
In Excess of $1,000,000 10%
"Profits from Development Activities" for each annual period shall
mean (i) the sum of development fees plus net lease-up and brokerage
commissions from projects of Services or EastGroup in the State of Florida, to
the extent Employee and the Chief Executive Officer of Services mutually agree
in writing, and development fees plus net lease-up and brokerage commissions
from projects of Services or EastGroup outside the State of Florida, to the
extent Employee and the Chief Executive Officer of Services mutually agree in
writing, less (ii) the sum of 50% of the Total Compensation Expense (as
hereinafter defined) paid by Services with respect to Xxxx Xxxxx plus 80% of
the Total Compensation Expense paid by Services with respect to Employee. For
purposes of this Agreement, Total Compensation Expense shall mean salary,
bonus payments (other than the Bonus), payroll taxes and the employer's costs
of fringe benefits, including but not limited to employer 401(k) plan
contributions, health insurance, life insurance and disability insurance.
Profits from Development Activities shall be calculated in accordance with the
foregoing on the accrual basis in accordance with generally accepted
accounting standards, consistently applied ("GAAP"). Employee shall have the
option to direct, prior to earning a Bonus, that a portion
5
7
of such Bonus be paid to other employees of Services involved in Services'
development activities.
(c) BENEFITS. Employee shall be eligible to participate in and
receive benefits under any employee benefit or compensation plan or
arrangement (collectively, "Benefit Plans") made available by EastGroup to its
employees in general or specifically to its executive officers, subject to and
on a basis consistent with the terms, conditions and overall administration of
such Benefit Plans. For the Employment Period, the Benefit Plans shall
include, but not be limited to, the same levels of health insurance, 401(k)
plan participation, life insurance, and disability insurance, as are available
to EastGroup executive officers as of the date of this Agreement, or
equivalent benefits. To the extent permitted or required under the Internal
Revenue Code of 1986, as amended, or the Employee Retirement Income Security
Act of 1974, as amended, or regulations promulgated thereunder, each of the
Benefit Plans maintained by Services or EastGroup shall recognize Ensign as a
predecessor employer and shall recognize and credit for all purposes under
such Benefit Plans all service provided by Employee to Ensign during any
period of Employee's employment with Ensign.
(d) VACATION AND HOLIDAYS. During the Employment Period, Employee
shall be entitled to annual paid vacation of four (4) weeks, plus all paid
holidays recognized by Services. Employee's unused vacation time up to (3)
vacation days per year will carry over to subsequent annual periods as
provided by EastGroup's policy concerning unused vacation time applicable to
EastGroup's executive officers.
(e) TRAVEL EXPENSES. Employee shall be entitled to reimbursement
6
8
of all reasonable expenses incurred by him in the performance of his services
hereunder (except for commuting to Services' headquarters) in accordance with
the policies of Services and shall furnish to Services such records and
receipts as may be necessary to verify the foregoing expenses.
3. TERMINATION; SEVERANCE BENEFITS.
(a) CAUSE. Employee may be terminated by Services for Cause.
"Cause" shall mean that the Chief Executive Officer of Services, acting in
good faith based on information then known to Services, has determined that
(i) Employee has engaged in or committed willful misconduct, gross negligence,
or conduct which is likely to and does in fact materially and substantially
injure Services; (ii) Employee has committed a violation of his fiduciary duty
of loyalty to Services or EastGroup and after written notice and Employee has
not cured such violation within thirty (30) days of such written notice; (iii)
Employee has engaged in or committed sexual harassment of any employee, agent
or representative of Services or EastGroup; (iv) Employee has been convicted
of or plead guilty to a crime constituting a felony or otherwise a crime
involving moral turpitude (other than a traffic offense or comparable
infraction), provided that dismissal for that offense is not prohibited by an
applicable and valid Florida statute; (v) Employee has breached any obligation
of Employee set forth in this Agreement and such breach is not cured within
thirty (30) days following receipt of written notice of such breach from
EastGroup or Services.
(b) OBLIGATIONS IF TERMINATION FOR CAUSE. If Employee is
terminated for Cause or resigns voluntarily, Employee shall be entitled to any
unpaid Salary,
7
9
plus credit for any vacation accrued (on a time apportioned basis up to the
date of termination) but not taken (or less if more vacation is taken than has
been accrued) together with reimbursement for expenses properly reimbursable
and not previously reimbursed through the date of termination or resignation
(collectively "Accrued Obligations").
(c) DISABILITY OF EMPLOYEE. Upon the Disability of Employee for a
continuous period of 60 days, the Chief Executive Officer of Services may send
written notice to Employee of Services's intention to terminate Employee's
employment. In such event, the Employment Period shall end within 10 days of
the receipt of such notice if Employee has not returned to work and Services
shall pay Employee his Salary through the end of the month in which such
termination occurs, plus credit for any vacation accrued (on a
time-apportioned basis up to the date of termination) but not taken (or less
if more vacation is taken than has been so accrued), together with
reimbursement for expenses properly reimbursable and not previously reimbursed
and any payments due to Employee under Services's insurance and benefits plans
plus such portion of the Bonus for the annual period in which such termination
occurs which has accrued through the end of the month in which such
termination occurs, and Services shall have no further obligation to Employee
under this Agreement. "Disability," as used herein, shall mean the physical or
mental incapacity of Employee which prevents him from substantially performing
his then applicable executive duties for Services with or without reasonable
accommodation (other than accommodation which would impose undue hardship on
Services) for a consecutive period of at least 60 days and that incapacity is
expected to be permanent and continuous for the remainder of Employee's life.
8
10
If any dispute arises among the parties as to whether Employee has
suffered or suffers a Disability, the determination of whether Employee
suffers from a Disability shall be made by a majority vote of three Florida
licensed physicians, each of whom has personally examined Employee. Upon
written request from one party to another, Services and Employee or Employee's
legal guardian or duly-authorized attorney-in-fact (if Employee is not legally
competent) shall each designate one such physician and the two physicians so
designated shall designate the third physician. The determination of such
panel, and the reasons therefor, shall be rendered in writing to Services and
to Employee. Employee hereby authorizes the disclosure and release to Services
of such determination and all supporting medical records, and such
determination shall be binding on both parties. For purposes of this section,
the effective date of any Disability shall be the date of issuance of the
written determination of the panel of physicians, which date may not, in any
event, precede the conclusion of the sixty (60) day period specified above.
The fees and expenses of the panel shall be paid one-half by Services and
one-half by Employee.
(d) DEATH OF EMPLOYEE. Upon the death of Employee, the Employment
Period shall end immediately and Services shall pay to Employee's estate or
beneficiary his Salary through the end of the month in which such death
occurs, plus credit for any vacation accrued (on a time-apportioned basis up
to the date of termination) but not taken (or less if more vacation is taken
than has been so accrued), together with reimbursement for expenses properly
reimbursable and not previously reimbursed, plus such portion of the Bonus for
the annual period in which such death occurs which has accrued through the end
of the month in which such death occurs and any payments due to Employee under
Services's
9
11
insurance and benefits plans, and Services shall have no further obligation to
Employee under this Agreement.
(e) TERMINATION BY EMPLOYEE. Employee may terminate his
employment with Services and EastGroup for "cause" by delivery of written
notice to Services and EastGroup if Employee, acting in good faith, determines
that (i) any sums due Employee hereunder are not paid by the latest date due
and are not thereafter paid within fifteen (15) days from EastGroup's or
Services' receipt of a written demand by Employee; or (ii) Services (or
EastGroup) shall be in breach of any non-monetary obligation of Services (or
EastGroup) set forth herein and such non-monetary breach is not cured within
thirty (30) days following receipt of written notice of such breach from
Employee. In the event that Employee shall terminate Employee's employment
with Services and EastGroup for "cause" pursuant to the provisions of this
Section 4(e), Employee shall be entitled to such compensation, benefits and
other amounts due Employee hereunder and such additional amounts to which
Employee is entitled at law. Employee's termination of Employee's employment
with Services and EastGroup for "cause" pursuant to this Section 4(e) shall in
no way relieve Services (or EastGroup) from its monetary obligations to
Employee as set forth in this Agreement.
4. CONFIDENTIAL INFORMATION, COMPETITION AND RELATED MATTERS.
(a) RESTRICTIONS ON USE AND DISCLOSURE OF INFORMATION. Documents
prepared by Employee or other employees or agents of Services, and
Confidential Information that might be given to Employee in the course of
performing his duties hereunder, are the exclusive property of Services and
shall remain in Services' possession on Services' premises
10
12
or at such location designated by the Chief Executive Officer of Services.
Under no circumstance shall any such Confidential Information or documents be
removed without the written consent of the Chief Executive Officer of Services
first being obtained.
Immediately upon the expiration or termination of this Agreement,
regardless of the reason therefor, all documents, specifications, plans,
drawings, flow charts, designs and similar materials, records, data bases,
computer discs or printouts, customer or tenant lists and compilations of
special information on customer or tenant requirements, notebooks and similar
repositories of Confidential Information including all copies thereof, whether
prepared by Employee or others, shall be forthwith delivered to Services.
Except as required by Employee's duties hereunder, Employee
agrees that he shall never, directly or indirectly, use, publish, disseminate
or otherwise disclose to any person or entity any Confidential Information
without the prior written consent of the Chief Executive Officer of Services,
or as otherwise required by law or legal process. Nothing contained in this
SECTION 5(a) shall prevent disclosure of information which previously has been
completely disclosed in a published patent or other publication of general
circulation, has otherwise been disclosed without restrictions to third
parties by Services or its affiliates, or is generally known to the public,
other than by reason of Employee's breach of his agreement of confidentiality
set forth herein.
(b) NON-COMPETITION AGREEMENT. The parties recognize that an
important part of the duties of Employee hereunder and the value to be
received by Services from Employee's services is the preservation and
improvement of the goodwill and customer
11
13
and tenant relationships of Services and EastGroup. The parties desire to
protect Services against any attempt by Employee to compete with Services so
as to appropriate the goodwill and customer relationships of Services.
Accordingly, except as expressly provided herein, Employee agrees that until
the later of (i) the date that is six (6) years after the date of this
Agreement and (ii) a period of three (3) years following termination of his
employment for any reason, he shall not directly or indirectly:
(i) Engage or have any interest, financial or otherwise, or
accept employment from or serve in any capacity (such as owner, investor,
principal, agent, consultant, partner or otherwise) with any real estate
investment trust or any other institutional entity engaged in the development
of real property (other than Services or its affiliates) which is engaged in
the business of real estate development, management or leasing (the
"Business") in the markets (A) in the State of Florida in which either
Services or EastGroup is engaged in such business at the time of termination
of Employees employment or (B) outside the State of Florida, to the extent
Employee and the Chief Executive Officer of Services have mutually agreed in
writing pursuant to provisions of Section 3(b); or
(ii) Initiate any contact with any employee of Services or its
affiliates for the purpose of hiring such employee in any capacity.
Nothing set forth in the foregoing provisions shall restrict or otherwise
prohibit Employee from engaging in real estate development, management or
leasing for or on behalf of Employee or for or on behalf of any entity in
which Employee or any member of his immediate family owns or controls, so long
as no real estate investment trust or institutional
12
14
entity engaged in the development of real estate is an investor in any such
entity; provided, however, that for the stated time periods Employee shall not
(i) initiate any contact with any employee of Services or its affiliates for
the purpose of hiring such employee in any capacity; (ii) initiate any contact
with any tenant which leases space in any of the properties owned or operated
by Services or EastGroup at the time of the termination of employment or
subsequent thereto; or (iii) seek to acquire any interest in any real estate
property owned by Services or EastGroup at the time of the termination of
employment or subsequent thereto.
Notwithstanding anything to the contrary contained herein, the
provisions of this section shall not prevent Employee from owning, directly or
indirectly, securities of, or otherwise participating in the ownership of, any
publicly-owned business which is engaged in the Business, so long as Employee
shall not own more than five percent of the total equity interest and shall
not be in control of such business and the fair value of Employee's ownership
interests in such business, trade or venture is not a substantial part of his
assets. Likewise, notwithstanding anything to the contrary contained herein,
the provisions of this section shall not prevent Employee, from actively
managing any of the following five real estate properties owned, directly or
indirectly, by Employee, or the following named legal entities, as of the date
of this Agreement: (i) 505 Partners, Ltd.; (ii) Orlando Gateway Limited
Partnership; (iii) Gateway Land Partners, Ltd.; (iv) "Cargex Inc."; and (v)
"Fasseck Venture Holdings."
(c) ENFORCEABILITY. If any provision of this ARTICLE 5 is deemed
to be in violation of law or unenforceable for any reason, the remainder of
this Article shall remain
13
15
in full force and effect and shall continue to be binding upon Employee; and
the parties agree that the court shall substitute a reasonable, judicially
enforceable limitation in place of the unenforceable provision in order to
serve the intent of the parties as expressed herein.
(d) REMEDIES ON BREACH OF ARTICLE 5.
(i) EFFECT OF BREACH. Services and Employee hereby stipulate
that, as between them (1) Confidential Information and Inventions are
important, material, and confidential and that disclosure of that information
will gravely affect the successful conduct of Services's business and its
goodwill and (2) that any breach of the terms of ARTICLE 5 is a material
breach of this Agreement.
(ii) REMEDIES. Employee recognizes that any failure to comply
with the provisions of ARTICLE 5 shall cause irreparable harm to Services and
that money damages alone would be insufficient to compensate Services.
Employee therefore agrees that any court having jurisdiction may enter a
preliminary or permanent restraining order or injunction against Employee in
the event of actual or threatened breach of any of the provisions of ARTICLE
5. Any such relief shall not preclude Services from seeking any other relief
at law or equity with respect to any such claim.
(e) SURVIVAL. The provisions of this ARTICLE 5 shall survive the
termination of Employee's employment hereunder.
(f) DEFINITIONS. For the purposes of this ARTICLE 5, the bold-faced
terms below shall have the indicated meanings.
14
16
(i) "CONFIDENTIAL INFORMATION" shall mean trade secret and other
confidential or proprietary information of Services. Without limiting the
generality of the foregoing definition, Confidential Information shall
include: data related to the properties managed by Services, information
regarding tenant relationships, trade secrets, trade dress, trademarks,
service marks, trademark and service xxxx applications, trade names and
computer programs and codes; names and identities of former, existing and
prospective tenants; all contacts with all such tenants; contents of all such
agreements with all former, existing and prospective tenants, deliveries;
costing, pricing and estimation procedures and formulae regarding development
proposals and leasing, sales, profit and loss, profit margin, production
costs, overhead and other bookkeeping and accounting information; all
information regarding business development and marketing; confidential
information revealed to Services or its affiliates by third parties and which
Services is obligated to keep confidential; and information contained in
Services or its affiliates' manuals, memoranda, plans, drawings and designs,
specifications, computer discs, tapes, and other media programs and printouts.
5. MISCELLANEOUS.
(a) EXPANDED MEANING OF "TERM" AND "TERMINATION". Any reference
herein to the "term" of this Agreement shall include any additional term
resulting from the extension, renewal or modification of this Agreement, and
any reference to the termination of this Agreement shall include the
termination of any extension, renewal or modification of this Agreement.
15
17
(b) ENTIRE AGREEMENT. The terms and provisions of this Agreement
constitute the entire agreement between the parties and supersede any previous
oral or written communications, representations, or agreements with respect to
the subject matter hereof.
(c) AMENDMENT. This Agreement shall be amended only by a written
document signed by each party hereto.
(d) NOTICE. All notices and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to have
been duly given: (a) when received by facsimile or similar device, if
subsequently confirmed by a writing sent within 24 hours after the giving of
such notice; (b) upon receipt if delivered personally; (c) three days
following deposit in the United States mail by certified or registered mail,
return receipt requested, postage prepaid; or (d) on the date of receipt, if
sent by FedEx or other national overnight delivery service; and in any case,
addressed as follows:
If to Services:
EastGroup Property Services, Inc.
c/o EastGroup Properties, Inc.
300 One Xxxxxxx Place
000 X. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxx XX
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
and to:
16
18
Xxxxxxx Xxxxxxxxxxx & Mugel, LLP
000 Xxxxx Xxxx Xxxxxxxx
Xxxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Employee to:
Xx. Xxxxxxx X. Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy via same means to:
Dean, Mead, Egerton, Bloodworth,
Capouano & Xxxxxxx, P.A.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Each party shall give prompt written notice to the other parties of any change
of address. No change in any of such addresses shall be effective insofar as
such notices and other communications are concerned, unless notice of such
change shall have been given to the other party hereto as provided in this
SECTION 6(e).
17
19
(e) TITLES AND HEADINGS. The titles and headings to the Articles
and paragraphs contained in this Agreement are inserted for convenience of
reference only and are not intended to be a part of or to affect the meaning
or interpretation of this Agreement.
(f) SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. This
Agreement shall be binding upon and shall inure to the benefit of the
executors, guardians, administrators, heirs, legatees, successors and assigns
of Services; provided, however, that Services shall not assign or delegate any
of the obligations created under this Agreement to an entity which is not a
subsidiary of EastGroup without the prior written consent of Employee.
Employee acknowledges and agrees that his obligations under this Agreement are
personal to him and shall not, without the prior written consent of Services,
be assignable by Employee. EastGroup shall be a third party beneficiary of
this Agreement entitled to enforce in its own name the covenants made by
Employee herein. No other person not a party hereto shall derive any rights
hereunder or be construed to be a third party beneficiary thereof.
(g) ASSIGNMENT BY EMPLOYEE. No interest of Employee or his spouse
or any other beneficiary under this Agreement, or any right to receive any
payments or distributions hereunder, shall be subject in any manner to sale,
transfer, assignment, pledge, attachment, garnishment, or other alienation or
encumbrance of any kind, nor may such interest or right to receive a payment
or distribution be taken, voluntarily or involuntarily, for the satisfaction
of the obligations or debts of, or other claims against, Employee or his
spouse or other beneficiary, including claims for alimony, support, separate
maintenance, and claims in bankruptcy proceedings.
18
20
(h) WAIVER. No waiver by any party at any time of any breach by
another party of, or compliance with, any condition or provision of this
Agreement to be performed by the other party shall be deemed a waiver of any
other provisions or conditions at the same time or at any prior or subsequent
time.
(i) APPLICABLE LAW; VENUE. This Agreement shall be construed and
interpreted in accordance with the internal substantive laws of the State of
Florida without taking into account its laws on the conflict of law. Venue for
any legal proceeding or action at law or equity arising out of or constraining
this Agreement shall lie in the state courts of Orange County, Florida, or in
the United States District Court for the Middle District of Florida, Orlando
Division, and the parties hereto waive any other jurisdiction or venue.
(j) DEFINITION OF AFFILIATE. An "affiliate" of, or person
"affiliated" with a specified person, as used in this Agreement, shall mean a
person that directly, or indirectly through one or more intermediaries,
controls or is controlled by, or is under common control with, the person
specified.
(k) ATTORNEYS' FEES AND COSTS. In the event a dispute arises
between the parties hereto and suit is instituted, the prevailing party in
such litigation shall be entitled to recover such party's reasonable
attorneys' fees and costs from the nonprevailing party, whether incurred
before or at the trial level or in any appellate proceeding.
(l) EASTGROUP GUARANTEE. To induce Employee to enter into this
Agreement, EastGroup hereby absolutely and unconditionally guarantees the
full, prompt and
19
21
faithful performance by Services of all covenants and obligations to be
performed by Services under this Agreement, including, but not limited to, the
payment of all sums stipulated to be paid by Services to or with respect of
Employee pursuant to this Agreement. In the event that Services fails to fully
perform any or all of such covenants and obligations in accordance with their
terms or fails to pay all or any part of any sums due Employee when due,
EastGroup will perform all such covenants and obligations in accordance with
their terms or immediately pay to Employee the amount due and unpaid by
Services. EastGroup hereby waives presentment, demand of payment, protest,
dishonor, notice of protest or dishonor, and notice of acceptance of the
guarantee set forth in this Section 6(l) and all rights to require Employee to
proceed against or to pursue any remedy he may have against Services in the
event of a breach by Services of any obligation or covenant contained herein.
EastGroup acknowledges that this Section 6(l) is a guaranty of payment and not
of collection. In the event that Services is not liable to perform any such
obligation or covenant because the act creating such obligation or covenant is
ultra xxxxx or unauthorized, and for such reason such obligation or covenant
cannot be enforced against Services, such fact shall not affect EastGroup's
liability under this Section 6(l). In the event of termination, liquidation or
dissolution of Services, this unconditional guarantee shall continue in full
force and effect.
(m) 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 agreement.
20
22
IN WITNESS WHEREOF, the parties have executed this
Employment Agreement effective as of the day and year first above written.
_____________________________________________
Xxxxxxx X. Xxxxx
EASTGROUP PROPERTY SERVICES, INC.
By:__________________________________________
Xxxxx X. Xxxxxx XX
President
Subject to Section 6(l), by execution below, EastGroup hereby agrees to be
bound by each of the provisions of this Agreement which, by their express
terms are binding on EastGroup, including, but not limited to, the provisions
of Section 6(l) above.
EASTGROUP PROPERTIES, INC.
By:__________________________________________
Xxxxx X. Xxxxxx XX
President and Chief Executive Officer
21
