SETTLEMENT AND EMPLOYMENT AGREEMENT
THIS SETTLEMENT AND EMPLOYMENT AGREEMENT (this "Agreement") is
made and entered into as of the 20th day of October, 1997 by and
between Xxxxxx Residential Properties, Inc., a Maryland corporation
(the "Company"), and Xxx X. Xxxxxx ("Daseke").
Recitals:
X. Xxxxxx is and has been employed by the Company pursuant
to an employment agreement dated February 5, 1997 (the "Employment
Agreement").
B. This Agreement describes the agreements of the Company
and Daseke concerning the modification of Daseke's employment
relationship with the Company and the termination of the Employment
Agreement.
C. This Agreement also describes the obligations of the
parties hereto to each other and the compensation and other value
to be received by Daseke from the Company following modification of
the employment relationship.
NOW, THEREFORE, in consideration of the foregoing, of the
representations, warranties, covenants and agreements contained
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, Daseke and the Company hereby agree as
follows:
1. Employment Relationship. The Company and Daseke hereby
agree that Daseke shall resign as Chairman of the Board of
Directors and Chief Executive Officer of the Company effective as
of the date hereof, and that upon execution and delivery of this
Agreement, this Agreement shall supercede the Employment Agreement
in all respects and the Employment Agreement shall be null and
void, and the parties shall have no further rights or obligations
thereunder.
Subject to the provisions of Section 3(b) hereof, as of the
date hereof, the Company agrees to and does hereby employ Daseke to
perform the duties of Chairman Emeritus of the Board of Directors
of the Company (the "Board"), and Daseke accepts such employment,
upon the terms and conditions set forth herein.
2. Term. The term of this Agreement (the "Term") shall be
for the period commencing as of the date set forth above and
continuing thereafter for a period of three years, unless earlier
terminated by Daseke or the Company pursuant to the terms hereof.
3. Duties and Services.
(a) Subject to the provisions of Section 3(c) hereof,
Daseke agrees to serve the Company as the Chairman Emeritus
and to provide such services to the Company as may be
reasonably requested by the Board or the Chief Executive
Officer of the Company. Daseke will not be prevented from (i)
engaging in any civic or charitable activity for which Daseke
receives no compensation or other pecuniary advantage; (ii)
investing his personal assets in businesses which do not
compete with the Company provided that such investment will
not require any services on the part of Daseke in the
operation of the affairs of the businesses in which
investments are made and provided further that Daseke's
participation in such businesses is solely that of an
investor; (iii) purchasing securities in any corporation whose
securities are publicly traded, provided that such purchases
will not result in Daseke owning beneficially at any time five
percent (5%) or more of the equity securities of any
corporation engaged in a business competitive with that of the
Company; or (iv) participating in any other activity approved
in advance in writing by the Board. In attending to the
business and affairs of the Company, Daseke agrees to serve
the Company faithfully, diligently and to the best of his
ability. As Chairman Emeritus, Daseke shall have no authority
to act for or bind the Company.
(b) Notwithstanding anything in this Agreement to the
contrary, for a sixty (60) day period, commencing on January
1, 1999, Daseke shall have the right to resign his position as
Chairman Emeritus and elect (the "Consultant Election") to be
employed as a consultant to the Company for the remainder of
the Term by delivering written notice of such election to the
Company prior to the expiration of such 60-day period. If
Daseke exercises the Consultant Election, then for the
remainder of the Term Daseke will hold himself ready to render
to the Company and its subsidiaries and affiliates such
advisory and consulting services as may be requested by the
Company's Chief Executive Officer. In furnishing any such
consulting services, Daseke will act as an independent
contractor and not as an employee of the Company. As a
consultant, Daseke shall have no authority to act for or bind
the Company. The Company shall not exercise any control over
the execution of the services or manner of performance of the
consulting services provided by Daseke following the exercise
of the Consultant Election, and Daseke, as a consultant, shall
be responsible to the Company only for the ultimate results
required by the Company. Subject to the provisions of Section
11 hereof, it is understood that, following the exercise of
the Consultant Election, Daseke will or may have other
occupations or employments during the Term, and in using the
services of Consultant hereunder, the Company will exercise
due regard for other commitments of Daseke.
(c) The Company agrees to use its best efforts to
nominate Daseke and cause him to be elected by the
stockholders of the Company at the Company's 2000 annual
meeting for a period commencing on the date of such meeting
and continuing until the 2003 annual meeting of stockholders
of the Company, provided Daseke meets the then existing
criteria established by the Board's Nominating and Corporate
Governance Committee and further subject to the procedures for
election of directors set forth in the Company's Articles of
Incorporation and Bylaws and the Maryland General Corporation
Law.
4. Compensation.
(a) (i) As consideration for the services to be rendered
hereunder by Daseke as Chairman Emeritus, the Company
agrees to pay Daseke, and Daseke agrees to accept,
payable in accordance with the Company's standard payroll
practices for executives, but payable in not less than
bi-weekly installments, compensation of Three Hundred
Four Thousand Five Hundred Dollars ($304,500.00) per
twelve month period of the Term during which he is
providing services as Chairman Emeritus hereunder.
(ii) From and after the date Daseke exercises the
Consultant Election, as consideration for the services to
be rendered hereunder by Daseke as a consultant, the
Company agrees to pay Daseke, and Daseke agrees to
accept, payable in accordance with the Company's standard
payroll practices, but payable in not less than bi-weekly
installments, compensation of Three Hundred Four Thousand
Five Hundred Dollars ($304,500.00) per twelve month
period during the remaining period of the Term. The
amounts payable to Daseke pursuant to this Section 4(a)
are referred to together herein as the "Salary."
(b) (i) Daseke shall be entitled to receive, as a bonus
for services rendered to the Company pursuant to this
Agreement and for services rendered pursuant to the
Employment Agreement prior to the date hereof, an amount
equal to 35% of the bonus pool, established by the
Compensation Committee to be payable to executive
officers of the Company for the 1997 calendar year.
(ii) At all other times while Daseke serves as
Chairman Emeritus, Daseke shall be eligible to receive an
annual incentive bonus as provided for in any incentive
plan of the Company, based on the level of accomplishment
of specific performance targets established by the Board
or any committee thereof, or such other bonus plans as
may be adopted by the Board from time to time in the
future. In addition, while Daseke serves as Chairman
Emeritus, Daseke shall participate in any Company
perquisite and supplemental benefit programs established
for the benefit of senior executives of the Company.
(c) During the Term, Daseke shall not receive any
additional compensation for his services as a member of the
Board.
(d) An office allowance of Seventy-Five Thousand Dollars
($75,000) per year shall be provided to Daseke, while Daseke
serves as Chairman Emeritus, to be allotted (as determined by
Daseke) to salary for a private secretary to be employed by
the Company and assigned to Daseke and lease and other office
expenses.
5. Restricted Stock/Stock Options.
(a) Pursuant to the terms of the several stock
option agreements dated as of February 9, 1994 (200,000
options), February 7, 1995 (90,000 options), February 3,
1996 (135,000 options), August 7, 1996 (35,000 options),
February 5, 1997 (60,000 options) and October 1, 1997
(200,000 options) (collectively, the "Option
Agreements"), providing for the grant to Daseke by the
Company of an aggregate of 720,000 options (the
"Options") to acquire shares of the Company's common
stock, par value $.01 per share (the "Common Stock"),
entered into by and between the Company and Daseke
pursuant to the terms of the Company's Amended and
Restated 1994 Stock Option Plan (the "Plan"), Daseke
currently has vested Options exercisable for 237,500
shares of Common Stock. The Company hereby agrees to
accelerate the vesting of the remaining 482,500 Options
issued to Daseke to the date of this Agreement, thereby
permitting the immediate exercise of all of the Options.
Daseke shall have until October 20, 2002 to exercise the
Options pursuant to the terms of the Plan and the Option
Agreements, the terms of which shall remain in full force
and effect except as expressly modified hereby.
(b) The 30,000 shares of Common Stock (the
"Restricted Shares") granted to Daseke under the
Company's Long-Term Incentive Plan (the "LTIP") on
February 12, 1997, shall remain outstanding in accordance
with the terms of the LTIP and Daseke shall continue to
receive the dividends payable on such shares of Common
Stock. On October 20, 2000, all restrictions on the
transfer of any then outstanding Restricted Shares as set
forth in the LTIP and in the Award Agreement issued under
the LTIP shall lapse and Daseke shall be issued stock
certificates in denominations designated by Daseke
representing the Restricted Shares as soon as practicable
following such date, without any restrictive legend
thereon.
(c) The 88,000 shares of Common Stock acquired by
Daseke on July 19, 1994, the 79,700 shares of Common
Stock acquired by Daseke on December 28, 1995 and the
24,300 shares of Common Stock acquired by Daseke on
January 18, 1996, pursuant to Company loan programs,
shall be retained by Daseke and the loans made to Daseke
by the Company shall remain outstanding and shall
continue to be payable in accordance with the terms of
the notes and other agreements evidencing such loans
following the date hereof.
6. Termination.
(a) On or after January 1, 1999, the Company may at any
time terminate this Agreement, but only upon delivery to
Daseke of a written notice of termination specifying a
termination date at least 30 days, but not more than 60 days,
after the date of delivery of such notice. In the event that
Daseke fails to be re-elected as a director of the Company at
the Company's 2000 annual meeting of stockholders, the Company
will immediately terminate this Agreement. Within 15 days of
any termination of this Agreement pursuant to this Section
6(a) (regardless of the reasons for such termination, subject
to the provisions of Sections 7 and 8 hereof) Daseke shall be
paid the Salary remaining for the Term (as if the Term had not
been terminated under this Section 6), as well as incentive
bonuses which have accrued through the date of such
termination, and benefits payable pursuant to this Agreement,
due hereunder in a single payment.
(b) In the event the Company terminates this Agreement
pursuant to this Section 6, the restrictions on the Restricted
Shares shall lapse as of the date of such termination.
(c) Upon termination of this Agreement pursuant to this
Section 6 and payment of all amounts due hereunder as a result
of such termination, this Agreement shall be null and void and
the parties hereto shall have no further rights or obligations
hereunder, except as otherwise specifically set forth herein,
and the "Term" (as defined in Section 3 hereof) shall be
deemed to have ended.
7. Termination in the Event of Death. This Agreement shall
terminate automatically upon the death of Daseke. In such event,
notwithstanding any other provision of this Agreement to the
contrary, the Company shall pay to Daseke's legal representative
only the Salary due to Daseke up to the date of termination as well
as incentive bonuses, which have accrued through the date of
termination, and benefits payable pursuant to this Agreement. Upon
termination of this Agreement pursuant to this Section 7 and
payment of all amounts due hereunder as a result of such
termination, this Agreement shall be null and void and the parties
hereto shall have no further rights or obligations hereunder,
except as otherwise specifically set forth herein, and the "Term"
(as defined in Section 3 hereof) shall be deemed to have ended.
8. Termination in the Event of Disability. If during the
Term, Daseke becomes physically or mentally disabled so as to
become unable, for a period of more than six (6) consecutive
months, to perform his duties hereunder on substantially a full
time basis ("Disability"), the Company may at its option terminate
this Agreement upon not less than thirty (30) days' written notice.
In the event of such termination, notwithstanding any other
provision of this Agreement to the contrary, Daseke shall be
entitled to continue to receive his Salary and benefits, excluding
any incentive bonuses, for a period equal to the lesser of (a)
twenty-four (24) months from the date of termination and (b) the
remainder of the Term (as if the Term had not been terminated
pursuant to this Section 8), and then shall receive such benefits
as are available to senior executives of the Company under any
applicable disability plan. Upon termination of this Agreement
pursuant to this Section 8 and payment of all amounts due hereunder
as a result of such termination, this Agreement shall be null and
void and the parties hereto shall have no further rights or
obligations hereunder, except as otherwise specifically set forth
herein, and the "Term" (as defined in Section 3 hereof) shall be
deemed to have ended.
9. Other Benefits.
(a) Except as expressly provided herein, this Agreement
shall not:
(i) be deemed to limit or affect the right of
Daseke to receive other forms of additional compensation
or to participate in any insurance, retirement,
disability, profit-sharing, stock purchase, stock option,
stock appreciation rights, cash or stock bonus or other
plan or arrangement or in any other benefits now or
hereafter provided by the Company or any of the Company's
affiliated companies for its employees; or
(ii) be deemed to be a waiver by Daseke of any
vested rights which Daseke may have or may hereafter
acquire under any employee benefit plan or arrangement of
the Company or any of the Company's affiliated companies.
(b) It is contemplated that, in connection with his
services hereunder, Daseke may be required to incur reasonable
business, telephone and travel expenses. The Company agrees
to reimburse Daseke in full for all reasonable and necessary
business, telephone and other related expenses, including
travel expenses, incurred or expended by him incident to the
performance of his duties hereunder, upon submission by Daseke
to the Company of such vouchers or expense statements
satisfactorily evidencing such expenses as may be reasonably
requested by the Company. It being understood that for
purposes of this Section 9 any such expenses approved in
advance by the Company shall be deemed to be "reasonable and
necessary."
(c) It is understood and agreed by the Company that
during the term of Daseke's employment hereunder as Chairman
Emeritus, he shall be entitled to annual paid vacations (taken
consecutively or in segments), the length of which shall be
consistent with the effective discharge of Daseke's duties and
the general customs and practices of the Company applicable to
its executive officers.
10. No Mitigation Obligation. The Company hereby
acknowledges that it will be difficult and may be impossible
(a) for Daseke to find reasonably comparable employment following
the date of termination, and (b) to measure the amount of damages
which Daseke may suffer as a result of termination of employment
hereunder. Accordingly, the payment of the termination
compensation by the Company to Daseke in accordance with the terms
of this Agreement is hereby acknowledged by the Company to be
reasonable and will be liquidated damages, and Daseke will not be
required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise, nor will any
profits, income, earnings or other benefits from any source
whatsoever create any mitigation, offset, reduction or any other
obligation on the part of Daseke hereunder or otherwise.
11. Non-Competition.
(a) Except as otherwise provided in Section 3 hereof,
during the Term, Daseke shall not, directly or indirectly,
either for himself or any other person, own, manage, control,
participate in, invest in, permit his name to be used by, act
as consultant or advisor to, render services for (alone or in
association with any individual, entity or other business
organization) or otherwise assist in any manner any individual
or entity that engages in or owns, invests in, manages or
controls any venture or enterprise engaged in (each, a
"Competitive Activity") the ownership, management, acquisition
or development of multifamily residential properties, provided
that the term "Competitive Activity" shall not include any
transaction pursuant to which Daseke pays aggregate
consideration of $5,000,000 or less or any transaction
involving assets owned by Daseke as of the date hereof or
otherwise acquired by Daseke during the Term not in violation
of the terms of this Agreement and provided further that
Daseke and the Company will each act reasonably and with due
regard for the other's interests. In the event that Daseke
desires to participate in any transaction which would
otherwise constitute a Competitive Activity hereunder, he
shall notify the Company within fifteen days prior to the
aniticipated closing date of such Competitive Activity, and
upon closing of such activity, this Agreement shall
automatically terminate and be of no further force and effect,
and the Company shall have no further obligations hereunder to
pay any further Salary or other cash benefits, bonuses or
payments to Daseke and Daseke shall have no further right to
receive Salary or other cash benefits, bonuses or payments.
In any event, if this Agreement is terminated under this
Section 11(a), Paragraph 5 is unchanged.
Daseke will not in any manner induce, attempt to induce
or assist others to induce or attempt to induce any investor,
client or tenant of the Company to terminate its, his or her
association with the Company or do anything to interfere with
the relationship between the Company and any of its customers,
clients, tenants or persons or concerns dealing with the
Company during the Term. During the Term, Daseke shall not,
without the prior consent of a majority of the Company's
independent directors, solicit, hire away or employ any person
who is an employee of the Company at the time of such
solicitation or attempted hiring or employment other than his
secretary on the date hereof; provided, however that nothing
herein shall be construed to prohibit Daseke's employment of
any former Company employee whose termination from the Company
was not induced by Daseke.
(b) In the event that any restriction contained in this
Section 11 shall be held too broad to allow enforcement of
such restriction to its full extent, then such restriction
shall be enforced to the maximum extent permitted by law, and
Daseke hereby consents and agrees that such scope may be
judicially modified accordingly in any proceeding brought to
enforce such restrictions.
(c) Daseke acknowledges and agrees that the Company's
remedy at law for any breach of his obligations under this
Section 11 may be inadequate, and agrees and consents that
temporary and/or permanent injunctive relief may be entered
enjoining him from breaching this Agreement and further agrees
that any proceeding which may be brought to enforce any
provision of this Section 11 without being requested to prove
actual damages as a result of the premature breach of this
Agreement.
12. Indemnification.
(a) The Company agrees to indemnify and hold harmless
Daseke against any and all losses, claims, damages or
liabilities to which he may become subject under the
Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, or other federal or state statutory
law or regulation, at common law or otherwise, in so far as
such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement or a material fact
contained in any filing made with the Securities and Exchange
Commission or in any document otherwise circulated to the
stockholders or prospective stockholders of the Company
(collectively, the "Solicitation Documents") or arise out of
or are based upon the omission or alleged omission to state
herein a material fact required to be stated therein or
necessary to make the statements therein not misleading and,
in the case of any prospectus, the omission or alleged
omission to state therein a material fact necessary in order
to make the statements therein, in light of the circumstances
under which they were made, not misleading and, in accordance
with the provisions of Section 12(b) hereof, agrees to
reimburse Daseke, as incurred, for any legal or other expenses
reasonably incurred by him in connection with investigating or
defending any such loss, claim, damage, liability or action.
(b) Promptly after receipt by Daseke under this Section
12 of notice of the commencement of any action, Daseke will,
if a claim in respect thereof is to be made against the
Company under this Section 12, notify the Company in writing
of the commencement thereof, but the failure so to notify the
Company (i) will not relieve it from liability under Section
12(a) hereof unless and to the extent it did not otherwise
learn of such action and such failure results in the
forfeiture by the Company of substantial rights and defenses
and (ii) will not, in any event, relieve the Company from any
obligations to Daseke other than the indemnification
obligation in Section 12(a) hereof. The Company shall be
entitled to appoint counsel of its choice at the Company's
expense to represent the Company and Daseke in any action for
which indemnification is sought (in which case, the Company
shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by Daseke except as set forth
below); provided, however, that such counsel shall be
reasonably satisfactory to Daseke. Notwithstanding the
Company's election to appoint counsel to represent Daseke in
an action, Daseke shall have the right to employ separate
counsel (including local counsel), and the Company shall bear
the reasonable fees, costs and expenses of such separate
counsel if such separate counsel is reasonably satisfactory to
the Company, and (x) the use of counsel chosen by the Company
to represent Daseke would be inappropriate, as determined by
such counsel, under applicable standards of professional
conduct due to an actual or reasonably anticipated material
conflict of interest, or (y) the Company shall not have
employed counsel to represent Daseke within a reasonable time
after notice of institution of such action. The Company will
not, without the prior written consent of Daseke, settle or
compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or
proceeding in respect to which indemnification may be sought
hereunder (whether or not Daseke is the actual or potential
party to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of
Daseke from all liability arising out of such claim, action,
suit or proceeding.
13. Mutual Release.
(a) Daseke, for the purpose of binding himself and his
heirs, legal representatives, successors and assigns, and
entities with which Daseke is affiliated (other than the
Company), and for all persons or entities claiming by, through
or under any of them, hereby RELEASES, WAIVES, ACQUITS AND
FOREVER DISCHARGES to the maximum extent permitted under
applicable law, the Company, and its prior, current and future
officers, employees, directors, stockholders, attorneys,
advisors, receivers and conservators, and their respective
heirs, legal representatives, successors and assigns of and
from any and all actions, causes of action, liabilities,
claims, counterclaims, effective defenses, offsets, demands,
losses or damages of any kind or nature whatsoever (the
"Daseke Claims") in law or in equity, known or unknown,
contingent or fixed, arising under contract, including,
without limitation, the Employment Agreement, tort, statute or
otherwise, and whether based on facts known or unknown, and
existing on the date hereof, or which may arise in the future
based upon facts and circumstances which exist or existed on
or prior to the date hereof (excluding, however, any of the
Daseke Claims arising from the performance or non-performance
of the Company's obligations under this Agreement, the Plan,
the Option Agreements, the LTIP, the Award Agreement issued
under the LTIP and the notes and other agreements referenced
in Section 5(c) hereof and any right to indemnification from
the Company arising from Daseke's status as an officer and
director of the Company and as provided herein), including,
without limitation, any and all actions, causes of action,
liabilities, claims, counterclaims, demands, losses and
damages asserted or that could have been asserted prior to the
execution of this Agreement, or sounding in, arising from or
any way relating to breach of contract, fraud, deceit,
tortious interference, breach of obligations of good faith and
fair dealing, misrepresentation, deceptive trade practices or
federal or state securities violations, existing under or
arising out of events prior to the date of this Agreement,
including specifically any claims or causes of action arising
out of or relating to the Employment Agreement or the
termination thereof or the events surrounding Daseke's
resignation as Chief Executive Officer and Chairman of the
Board of the Company. Daseke for the purpose of binding his
affiliates also hereby TRANSFERS AND ASSIGNS any and all of
the Daseke Claims to the Company and its prior, current and
future officers, employees, directors, stockholders, receivers
and conservators, and their respective heirs, legal
representatives, successors and assigns. This provision shall
not be construed as an admission of any liability by the
Company or any other entity.
(b) The Company, for the purpose of binding its prior,
current and future officers, employees, directors,
stockholders, receivers and conservators and entities with
which they are affiliated, and for all persons or entities
claiming by, through or under any of them, hereby RELEASES,
WAIVES, ACQUITS AND FOREVER DISCHARGES to the maximum extent
permitted under applicable law, Daseke and his heirs, legal
representatives, successors and assigns of and from any and
all actions, causes of action, liabilities, claims,
counterclaims, effective defenses, offsets, demands, losses or
damages or any kind or nature whatsoever (the "Company
Claims"), in law or in equity, known or unknown, contingent or
fixed, arising under contract, tort, statute or otherwise, and
whether based on facts known or unknown, and existing on the
date hereof, or which may arise in the future based upon facts
and circumstances which exist or existed on or prior to the
date hereof (excluding, however, any of the Company Claims
arising from the performance or non-performance of any
obligations under this Agreement, the Plan, the Option
Agreements, the LTIP, the Award Agreement issued under the
LTIP and the notes and other agreements referenced in Section
5(c) hereof and any right to indemnification from Daseke
arising from Daseke's status as an officer and director of the
Company and as provided herein), including, without
limitation, any and all actions, causes of action,
liabilities, claims, counterclaims, demands, losses and
damages asserted or that could have been asserted prior to the
execution of this Agreement, or sounding in, arising from or
in any way relating to breach of contract, fraud, deceit,
tortious interference, breach of obligations of good faith and
fair dealing, misrepresentation, deceptive trade practices or
federal or state securities violations, existing under or
arising out of events prior to the execution of this
Agreement, including specifically any claims or causes of
action arising out of or relating to the Employment Agreement
or the termination thereof or the events surrounding Daseke's
resignation as Chief Executive Officer and Chairman of the
Board of the Company. The Company, for the purpose of binding
its prior, current and future officers, employees, directors,
stockholders, receivers and conservators hereby TRANSFERS AND
ASSIGNS any and all of the Company Claims to Daseke and his
heirs, legal representatives, successors and assigns. This
provision shall not be construed as an admission of any
liability by Daseke.
(c) Daseke, for the purpose of binding himself and his
heirs, legal representatives, successors and assigns, and for
all persons or entities claiming by, through or under him,
hereby RELEASES, WAIVES, ACQUITS AND FOREVER DISCHARGES to the
maximum extent permitted under applicable law, the Company and
its prior, current and future officers, employees, directors,
stockholders, attorneys, advisors, receivers and conservators,
and their respective heirs, legal representatives, successors
and assigns of and from any and all claims of discrimination
of any kind, including age discrimination and any contractual,
tort or other common law claims. This release and waiver
includes all such claims, whether under any applicable federal
laws, including, without limitation, the federal Age
Discrimination in Employment Act, Title VI of the Civil Rights
Act of 1964, the Americans with Disabilities Act, the Equal
Pay Act, the Worker Adjustment and Retraining Notification
Act, the Employee Retirement Income Security Act, the Family
and Medical and Leave Act, the Older American Workers Act or
under any applicable state or local laws or ordinances,
including the Texas Commission on Human Rights Act.
14. Legal Fees and Expenses. The Company agrees to pay
Daseke's reasonable attorneys' fees and expenses, in connection
with the negotiation and execution of this Agreement, not to exceed
$15,000.
15. Withholding of Taxes. The Company may withhold from any
amounts payable under this Agreement all federal, state, city or
other taxes as the Company is required to withhold pursuant to any
law or government regulation or ruling.
16. Successors and Binding Agreement.
(a) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of
the business or assets of the Company, by agreement in form
and substance satisfactory to Daseke, expressly to assume and
agree to perform this Agreement in the same manner and to the
same extent the Company would be required to perform if no
such succession had taken place. This Agreement will be
binding upon and inure to the benefit of the Company and any
successor to the Company, including, without limitation, any
persons acquiring directly or indirectly all or substantially
all of the business or assets of the Company whether by
purchase, merger, consolidation, reorganization or otherwise
(and such successor shall thereafter be deemed the "Company"
for the purposes of this Agreement), but will not otherwise be
assignable, transferable or delegable by the Company.
(b) This Agreement will inure to the benefit of and be
enforceable by Daseke's personal or legal representatives,
executors, administrators, successors, heirs, distributees and
legatees.
(c) This Agreement is personal in nature and neither of
the parties hereto shall, without the consent of the other,
assign, transfer or delegate this Agreement or any rights or
obligations hereunder except as expressly provided in Sections
16(a) and 16(b) hereof and with respect to the Company's
obligation to pay legal fees and expenses under Section 16
hereof. Without limiting the generality or effect of the
foregoing, Daseke's right to receive payments hereunder will
not be assignable, transferable or delegable, whether by
pledge, creation of a security interest or otherwise, other
than by a transfer by Daseke's will or by the laws of descent
and distribution and, in the event of any attempted assignment
or transfer contrary to this Section 16(c), the Company shall
have no liability to pay any amount so attempted to be
assigned, transferred or delegated, except with respect to
legal fees and expenses, as and to the extent provided in
Section 14 hereof.
17. Non-Disparagement. None of the parties to this Agreement
shall say, publish or cause to be published or do any thing that
casts the other party hereto or their officers, directors,
employees or stockholders (collectively, the "Protected
Individuals") in an unfavorable light, or disparage or injure the
goodwill or business reputation of the Protected Individuals or any
relationship of the Protected Individuals with any suppliers,
vendors, customers, employees, contractors and/or investors of or
in the Protected Individuals or the financial community in general.
18. Notices. For all purposes of this Agreement, all
communications, including, without limitation, notices, consents,
requests or approvals, required or permitted to be given hereunder
will be in writing and will be deemed to have been duly given when
hand delivered or dispatched by electronic facsimile transmission
(with receipt thereof orally confirmed), or five business days
after having been mailed by United States registered or certified
mail, return receipt requested, postage prepaid, or three business
days after having been sent by a nationally recognized overnight
courier service such as Federal Express, UPS or Purolator,
addressed to the Company (to the attention of the Secretary of the
Company) at the address set forth on the signature pages of this
Agreement and to Daseke at the address set forth on the signature
pages of this Agreement, or to such other address as either party
may have furnished to the other in writing and in accordance
herewith, except that notices of changes of address shall be
effective only upon receipt.
19. Confidentiality. Each of the parties will keep the terms
of this Agreement and the facts and circumstances underlying
Daseke's resignation strictly confidential, and will cause their
respective affiliates and attorneys to do likewise, except for
mutually agreed disclosures and except to the extent disclosure is
required by law or is necessary for tax, insurance or banking
purposes. Daseke hereby acknowledges that he is not authorized to
act as a spokesman for the Company on any matter, except as
otherwise expressly permitted by the Board or the Chief Executive
Officer.
20. Publicity. The initial press release relating to this
Agreement shall be a joint release and thereafter the parties
hereto shall, subject to their respective legal obligations
(including requirements of stock exchanges and other similar
regulatory bodies) and Section 19 hereof, consult with each other,
and use reasonable efforts to agree upon the text of any press
release, before issuing any such press release or otherwise making
public statements with respect to the transactions contemplated
hereby and in making any filings with any federal or state
governmental or regulatory agency or with any national securities
exchange with respect thereto.
21. Governing Law. The validity, interpretation,
construction and performance of this Agreement will be governed by
and construed in accordance with the substantive laws of the State
of Texas, without giving effect to the principles of conflict of
laws of such State.
22. Validity. If any provision of this Agreement or the
application of any provision hereof to any person or circumstances
is held invalid, unenforceable or otherwise illegal, the remainder
of this Agreement and the application of such provision to any
other person or circumstances will not be affected, and the
provision so held to be invalid, unenforceable or otherwise illegal
will be reformed to the extent (and only to the extent) necessary
to make it enforceable, valid or legal.
23. Miscellaneous. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by Daseke and the Company.
No waiver by either party hereto at any time of any breach by the
other party hereto or compliance with any condition or provision of
this Agreement to be performed by such other party will be deemed
a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, expressed or implied with
respect to the subject matter hereof have been made by either party
which are not set forth expressly in this Agreement. Except as
otherwise identified, references to Sections are references to
Sections of this Agreement.
24. Survival of Certain Provisions. Notwithstanding anything
herein to the contrary, the obligations of the Company and Daseke,
as the case may be, under Sections 4, 5, 6, 8, 9, 12, 13, 14, 17,
18 and 19 hereof, to the extent applicable, shall remain operative
and in full force and effect regardless of the expiration, for any
reason, of the Term.
25. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original
but all of which together will constitute one and the same
agreement.
26. Warranty. Daseke warrants and represents that he is not
a party to any agreement, contract or understanding, whether of
employment or otherwise, which would in any way restrict or
prohibit him from undertaking or performing employment in
accordance with the terms and conditions of this Agreement.
27. Board Approval. By executing this Agreement, the Company
acknowledges that this Agreement has been reviewed and approved by
the Compensation Committee of the Board.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
XXXXXX RESIDENTIAL PROPERTIES,
INC.
By: /s/ Xxxxxxxx Xxxxxxx
Xxxxxxxx Xxxxxxx
President and Chief
Acquisitions Officer
Address:
One Lincoln Centre
0000 XXX Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
/s/ Xxx X. Xxxxxx
Xxx X. Xxxxxx
Address:
DB972940002
032398 v7
111:14199-25
