EXECUTIVE EMPLOYMENT AGREEMENT
This
Employment Agreement (“Agreement”) is entered into this 19th day of February,
2007, by and between Xxxx X. Xxxxx (“Executive”) and AmREIT (the “Company”).
RECITALS
In
consideration of the mutual covenants set forth herein and other good and
valuable consideration, the receipt and sufficiency of which the parties
acknowledge, the Company and Executive, intending to be legally bound, hereby
agree as follows:
1. Employment
Term.
The
Company agrees to employ Executive and Executive hereby accepts such employment
from the Company upon the terms and conditions set forth in this Agreement
for
the period beginning on the date hereof and continuing until December 31, 2007
(unless otherwise terminated earlier in accordance with Section 5 hereof)
(“Initial Employment Period”). Upon the expiration of the Initial Employment
Period, this Agreement shall be automatically renewed for consecutive one-year
periods unless either party provides a written notice of non-renewal to the
other party at least ninety (90) days prior to the end of the Initial Employment
Period or any additional one-year period (the “Renewal Employment Period”) (the
Initial Employment Period and any Renewal Employment Periods shall be referred
to collectively herein as the “Employment Period”). A notice of non-renewal
provided by the Company shall not constitute a termination without Cause under
Section 5(b).
2. Nature
of Duties. Executive
shall be employed as the Company’s Chief Financial Officer and Executive Vice
President with job responsibilities related thereto, and such job
responsibilities may be modified from time to time at the sole discretion of
the
Chief Executive Officer or the Board of Trust Managers of the Company (“Board”).
Executive
shall
report to the Chief Executive Officer and shall devote his full time efforts
to
the faithful performance of his duties on behalf of the Company. Executive
shall
not engage in additional gainful employment of any kind or undertake any role
or
position, other than charitable or civic activities, whether or not for
compensation, with any person or entity during the Employment Period without
advance written approval of the Chief Executive Officer or the Board. Executive
shall perform his duties at or within a reasonable vicinity of Houston, Texas,
except for required travel on the Company’s business.
3. Adherence
to Company Rules. Executive,
at all
times during the Employment Period, shall strictly adhere to and obey all of
the
Company’s written rules, regulations and policies, which will be provided to
Executive
and are
now in effect, or as are subsequently adopted or modified by the Company and
provided to Executive,
which
govern the operation of the Company’s business and the conduct of employees of
the Company.
4. Compensation
and Benefits.
a. Base
Salary.
During
the Employment Period, Executive
shall
receive an annual base salary of $175,000, payable in equal installments in
accordance with the Company’s normal payroll procedures. Executive’s
salary
shall be subject to all applicable federal and state withholding taxes.
Executive’s salary may be increased by the CEO and the Compensation Committee of
the Company’s Board of Directors (“Compensation Committee”) at any time in their
discretion.
b. Incentive
Compensation. During
the Employment Period,
Executive
will be eligible to participate in any annual performance incentive or bonus
program, as approved by the CEO and the Compensation Committee in their
discretion, based on Company and individual performance goals. Any incentive
or
bonus compensation for any year shall be paid on or before March 15 of the
following year, with the exception of production-based bonuses, which will
be
paid in July and February, based on Executive’s achievement of pre-established
goals. Executive must be an employee on the payment date for the bonus or
incentive to be considered "earned or accrued", other than production-based
bonuses, which are considered "earned or accrued" as the production goals are
met. Executive shall not be entitled to earn any incentive compensation or
bonuses hereunder after the termination of this Agreement.
c. Standard
Benefits.
During
the Employment Period, Executive shall be entitled to participate in all
employee benefit plans and programs, including paid vacations, generally
available to other similarly situated Company executives, subject to the terms
and conditions of the applicable plans.
d. Expenses.
During
the Employment Period, Executive shall be entitled to receive prompt
reimbursement for all reasonable and customary travel and business expenses
he
incurs in connection with his employment hereunder. Executive must account
for
those expenses in accordance with the policies and procedures established by
the
Company.
e. Restricted
Equity.
During
the Employment Period, Executive may, within the sole discretion of the CEO
and
the Compensation Committee, be eligible to participate in such restricted share
plans that the Company may establish from time to time in the future, subject
to
the terms and conditions of the applicable plan.
f. Vacation.
Executive shall be entitled to three (3) weeks vacation in each calendar year,
together with leave of absence and leave for illness or temporary disability
in
accordance with the policies of the Company in effect from time to time;
provided however that Executive shall not be permitted to carry over more than
40 hours of unused vacation time from year to year.
5. Termination.
In
addition to non-renewal as set forth in Section 1 of this Agreement, the
Company or Executive may terminate this Agreement and Executive’s employment as
provided below:
a. Termination
by the Company for Cause.
The
Company shall have the right to terminate Executive’s employment and this
Agreement at any time for any of the following reasons (each of which is
referred to herein as “Cause”):
(A) continued
failure by Executive (other than for reason of mental or physical illness),
after notice by the Company, to perform Executive’s duties;
(B) misconduct
in the performance of Executive’s duties;
(C) any
act
by Executive of fraud or dishonesty with respect to any aspect of the Company's
business including, but not limited to, falsification of Company
records;
(D) conviction
of Executive of a felony (or a plea of nolo
contendere
with
respect thereto);
(E) acceptance
by Executive of employment with another employer; or
(F) Executive’s breach
of
Sections 8, 9, 10 or 11 of this Agreement.
If
the
Company terminates Executive’s employment for any of the reasons set forth
above: (A) the Company shall within ten (10) days following the date of
termination, pay the Executive any earned and accrued but unpaid installments
of
base salary and any other accrued and unpaid amounts due to Executive under
Section 4 above through the date of termination, and the Company shall have
no further obligations to Executive hereunder from and after the date of
termination; and (B) all of Executive’s outstanding stock awards or other
equity grants shall continue to be governed by the terms and conditions of
the
applicable grant agreement and any related plan.
b. Termination
by the Company Without Cause.
The
Company shall have the right to terminate Executive’s employment without Cause
by giving Executive not less than thirty (30) days’ prior written notice and in
such event, the Company shall pay Executive (i) any earned and accrued but
unpaid compensation and benefits and any other accrued and unpaid amounts due
to
Executive under Section 4 above through the date of termination and,
subject to the provisions of Sections 14 and 26, (ii) a severance payment
equal to one (1) times Executive’s annual base salary (based on Executive’s
monthly salary on the date of termination) and one (1) times the annual bonus,
computed on the average of the last three (3) years bonus received by Executive.
The Company shall pay the severance payment referenced in this paragraph in
equal monthly installments over a period of twelve (12) months. In addition,
all
of Executive’s unvested restricted shares and equity interests shall continue to
be governed by the terms and conditions of any applicable grant agreement and
any related plan. In addition, upon a termination pursuant to this subsection
b., Executive shall be entitled to continue to participate in Company-provided
medical or health insurance or benefit plans, at no cost to Executive, for
one
(1) year after the date of termination; provided, however, that if applicable
law or the terms of the plan prohibit the continued participation of Executive
or his dependents for all or part of such period, the Company shall make a
cash
payment to Executive that is sufficient, on an after-tax basis, to allow
Executive to obtain insurance that provides substantially the same benefits
as
the Company-provided medical or health insurance or benefit plan.
c. Voluntary
Termination by Executive.
Except
as provided in Section 5(f), Section 5(g) and Section 6(b) below, in the
event that Executive’s employment with the Company is voluntarily terminated by
Executive for any reason, the Company shall pay Executive any earned and accrued
but unpaid installments of base salary and any other accrued and unpaid amounts
due to Executive under Section 4 above through the date of termination, and
the Company shall have no further obligations hereunder from and after the
date
of such termination and the Company and Executive shall have all other rights
and remedies available under this Agreement or any other agreement and at law
or
in equity.
d. Termination
Upon Death.
In the
event that Executive shall die during the Employment Period, (i) within thirty
(30) days following the date of death, the Company shall pay to Executive’s
estate (A) any earned and accrued but unpaid installments of base salary and
bonus, any accrued but unpaid vacation benefit and any other accrued and unpaid
amounts due to Executive under Section 4 above through the date of
Executive’s death and (ii) all of Executive’s unvested restricted shares and
equity interests shall continue to be governed by the terms and conditions
of
any applicable grant agreement and any related plan. Executive shall be entitled
to participate in the Company’s life insurance program.
e. Termination
Upon Disability.
In the
event that Executive shall become Disabled (as defined below) during the
Employment Period, the Company may terminate Executive’s employment hereunder by
giving Executive not less than thirty (30) days’ prior written notice of the
effective date of termination and in such event, the Company shall pay Executive
any earned and accrued but unpaid installments of base salary and any other
accrued and unpaid amounts due to Executive under Section 4 above through
the date of termination. In addition, all of Executive’s unvested restricted
shares and equity interests shall continue to be governed by the terms and
conditions of any applicable grant agreement and any related plan. For purposes
of this Agreement, Executive shall become “Disabled” if he shall become, because
of illness or incapacity, unable to perform the essential functions of his
job
under this Agreement, with or without reasonable accommodation, for a continuous
period of ninety (90) days during the Employment Period.
f. Termination
by Executive for Good Reason. Executive
may terminate his employment hereunder for Good Reason (as defined below) at
any
time during the Employment Period by delivery of written notice to the Company
of such termination at least thirty (30) days prior to the effective date of
termination and in such event, the Company shall pay Executive (i) any
earned and accrued but unpaid compensation and benefits and any other accrued
but unpaid amounts due to Executive under Section 4 above through the date
of termination and, subject to the provisions of Sections 14 and 26, (ii) a
severance payment equal to one (1) times Executive’s annual base salary (based
on Executive’s monthly salary on the date of termination) and one (1) times the
annual bonus, computed on the average of the last three (3) years bonus received
by Executive. The Company shall pay the severance payment referenced in this
paragraph in equal monthly installments over a period of twelve (12) months.
In
addition, all of Executive’s unvested restricted shares and equity interests
shall continue to be governed by the terms and conditions of any applicable
grant agreement and any related plan.
For
purposes of this Agreement, “Good Reason” shall mean any one or more of the
following:
(A) a
reduction by the Company, without Executive’s consent, in Executive’s position,
duties, responsibilities or status with the Company that represents a
substantial adverse change from his position, duties, responsibilities or
status, but specifically excluding any action in connection with the termination
of Executive’s employment for death, Disability (as defined herein), Cause (as
defined herein) or by Executive for Normal Retirement (as defined herein);
provided, however, that the Company (i) hiring or promoting of one or more
new
or existing employees to whom Executive may report or (ii) otherwise undertaking
an internal reorganization that results in Executive reporting to a new or
different person shall not be considered “Good Reason” for purposes of this
subsection (A);
(B) the
Company requiring, as a condition of employment, Executive to relocate his
employment more than fifty (50) miles from the location of Executive’s principal
office on the date of this Agreement, without the consent of
Executive;
(C) any
willful and material breach by the Company (or by the acquiring or successor
business entity) of any material provision of this Agreement or any other
agreement between the Company or any of its subsidiaries and Executive that,
in
any case, is not cured within thirty (30) days of the Company’s receipt of
written notice from Executive of such breach; or
(D) the
failure by the Company to obtain the assumption of this Agreement by any
successor or assign of the Company.
g. Termination
Upon Normal Retirement.
In the
event that Executive’s employment terminates by reason of his Normal Retirement
during the Employment Period, (i) the Company shall pay to Executive any earned
and accrued but unpaid installments of base salary and bonus, any accrued but
unpaid vacation benefit and any other accrued and unpaid amounts due to
Executive under Section 4 above through the date of termination, and (ii)
all of Executive’s unvested restricted shares and equity interests shall
vest
and
be exercisable and
all
restrictions on the transfer of any shares or equity interests shall lapse
as of
the date of
Executive’s termination, and otherwise shall continue
to be governed by the terms and conditions of any applicable grant agreement
and
any related plan. The Company shall have no further obligations hereunder from
and after the date of such termination. For purposes of this Agreement, “Normal
Retirement” means the Executive’s voluntary
termination of employment with the Company after attaining age 65.
6. Change
of Control.
a. Change
of Control.
For
purposes of this Agreement, unless the Board determines otherwise, a “Change of
Control” of the Company shall be deemed to have occurred at such time
as:
(A) any
“person” (as the term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of voting securities of the Company representing more than 50%
of
the Company’s outstanding voting securities or rights to acquire such securities
except for any voting securities issued or purchased under any employee benefit
plan of the Company or its subsidiaries; or
(B) a
plan of
reorganization, merger, consolidation, sale of all or substantially all of
the
assets of the Company or similar transaction is approved or occurs or is
effectuated pursuant to which the Company is not the resulting or surviving
entity; provided, however, that such an event listed above will be deemed to
have occurred or to have been effectuated only upon receipt of all required
regulatory approvals not including the lapse of any required waiting periods;
or
(C) a
plan of
liquidation of the Company or an agreement for the sale or liquidation of the
Company is approved and completed; or
(D) the
Board
determines in its sole discretion that a Change in Control has occurred, whether
or not any event described above has occurred or is contemplated.
b. Benefits
Upon Change of Control. If,
within a period beginning six (6) months before, and ending twelve (12) months
after, the date of a Change of Control (the “Change Period”), Executive’s
employment with the Company is (i) terminated without Cause (as described
in Section 5b above) by the Company (or by the acquiring or successor
business entity following a Change of Control), or (ii) terminated for Good
Reason (as described in Section 5f above) by Executive: (A) the Company shall
pay to Executive any earned and accrued but unpaid installments of base salary
and bonus and any other accrued but unpaid amounts due to Executive under
Section 4 above through the date of termination; and, subject to the provisions
of Sections 14 and 26, (B) the Company shall pay to Executive as severance
pay and in lieu of any further compensation for periods subsequent to the
termination an amount in cash equal to one and a half (1.5) times Executive’s
base salary (based on Executive’s monthly salary on the date of the Change of
Control) and one and a half (1.5) times the annual bonus, computed on the
average of the last three (3) years bonus received by Executive; and
(C) Executive shall continue to participate in Company-provided medical or
health insurance or benefit plans, at no cost to Executive, for twelve (12)
months after the date of termination; provided however, that if applicable
law
or the terms of the plan prohibit the continued participation of Executive
or
his dependents for all or part of such period, the Company shall make a cash
payment to Executive that is sufficient, on an after-tax basis, to allow
Executive to obtain insurance that provides substantially the same benefits
as
the Company-provided medical or health insurance or benefit plan. The Company
shall pay the severance payment referenced in this paragraph in equal monthly
installments over a period of twelve (12) months. In addition to the foregoing,
on the date of a Change of Control, all of Executive’s unvested restricted
shares, and equity interests shall vest and be exercisable and all restrictions
on the transfer of any shares or equity interests shall lapse as of the date
of
the Change of Control and any such awards that include an exercise period shall
remain exercisable until the earlier of the expiration date of such award or
the
first anniversary of the date of termination.
Notwithstanding
the foregoing, if, in connection with a transaction that technically meets,
or
may meet, the definition of “Change of Control” as set forth in subsection a.
above, Executive’s employment by the Company or a successor to the Company is
terminated, but Executive is immediately re-hired or otherwise becomes an
employee of a successor to the Company or surviving company in such a
transaction, including, by way of example, a “going private” transaction in
which the Company’s equity securities are no longer publicly traded, no benefits
shall be payable to Executive under this subsection b.
7. No
Mitigation or Offset. Executive
shall not be required to mitigate the amount of any payment provided for in
Section 5 or Section 6 of this Agreement by seeking other employment
or otherwise. The Company shall not be entitled to set off or reduce any
severance payments owed to Executive under this Agreement by the amount of
earnings or benefits received by Executive in future employment.
8. Non-Disclosure.
During
the Employment Period, the Company agrees to provide Confidential Information
to
Executive and Executive agrees to retain any Confidential Information in strict
confidence, and shall not furnish, make available or disclose to any third
party
or use for the benefit of himself or any third party, except in the furtherance
of his job duties with the Company. Executive shall not, at any time after
his
employment with the Company has ended (for whatever reason), use or divulge
to
any person or entity, directly or indirectly, any Confidential Information,
or
use any Confidential Information in subsequent employment, business or work
of
any nature, regardless of when Executive obtained access to or knowledge of
such
Confidential Information. As used in this Agreement, “Confidential Information”
shall mean any information relating to the business or affairs of the Company
and its affiliates and predecessors, including information, observations and
data obtained by Executive at any time during his employment with the Company,
including before and during the course of his performance under this Agreement.
Confidential Information includes, without specific limitation, trade secrets,
information relating to financial statements, operations manuals, systems
manuals, property or market evaluations or analyses, customer identities,
customer profiles, customer preferences, partner or investor identities,
employees, suppliers, properties, prospective properties, project designs,
project methods, advertising programs, acquisition plans and information,
expansion plans and information, advertising techniques, target markets,
servicing methods, equipment, programs, strategies and information, market
analyses, profit margins, pricing information, cost structure, past, current
or
future marketing strategies, information development by contractors or
consultants, or any other proprietary information used by the Company or its
affiliates; provided, however, that Confidential Information shall not include
any information which is in the public domain or becomes known in the industry
through no wrongful act on the part of Executive. Executive acknowledges that
the Confidential Information is vital, sensitive, confidential and proprietary
to the Company and that he is under a contractual and common law duty to not
disclose the Confidential Information to any third party at any time, except
as
otherwise required by law, rule or regulation. Executive acknowledges and agrees
that his non-disclosure obligation applies to all Confidential Information
of
the Company, no matter when he obtained knowledge of or access to such
Confidential Information. If Executive is subpoenaed, or is otherwise required
by law to testify concerning Confidential Information, Executive agrees to
promptly notify Company upon receipt of a subpoena, or upon belief that such
testimony shall be required.
9. Non-Competition.
During
the Employment Period and for an additional period of one (1) year following
the
termination of his employment by the Company for Cause ( as described in Section
5a above) or the voluntary termination of employment by the Executive (as
described in Section 5c above) (the “Noncompetition Term”), Executive agrees not
to, directly or indirectly, either through any form of ownership or as an
individual, director, officer, principal, agent, employee, employer, adviser,
consultant, shareholder, partner, member or in any other individual or
representative capacity whatsoever, either for his own benefit or for the
benefit of any person or entity, without the prior written consent of the
Company (which consent may be withheld in its sole discretion), engage in any
manner in the Business (as defined below) in the metropolitan areas of Houston,
Xxxxxx, Xxxxxx or San Antonio, Texas or any other metropolitan area in the
United States where the Company owns or leases more than $10 million in gross
asset value of assets as of the date of this Agreement or as of the date of
termination. For purposes of this Section 9, “Business” means the acquisition,
development, management, ownership, leasing and/or disposition of retail
shopping centers and/or any capital raising activities related thereto.
Executive
understands and agrees that his covenants contained in this Section 9 are
being given in consideration of the numerous mutual promises and agreements
contained in this Agreement between the Company and Executive, including,
without limitation, those involving, employment, compensation, and Confidential
Information, and in order to protect the Company’s Confidential Information and
other legitimate business interests and to reduce the likelihood of irreparable
damage which would occur in the event such information is provided to or used
by
a competitor of the Company.
Notwithstanding
the foregoing, Executive shall not be deemed to have violated this
Section 9 solely by reason of his passive ownership of 10% or less of the
outstanding equity interests of any public entity.
Executive
hereby acknowledges that the geographic boundaries, scope of prohibited
activities and the time duration of the provisions of this Section 9 are
reasonable and are no broader than are necessary to protect the legitimate
business interests of the Company. This noncompetition provision can only be
revoked or modified by a writing signed by both Executive and the Chief
Executive Officer of the Company, as approved by the Board, which specifically
states an intent to revoke or modify this provision. Executive acknowledges
that
the Company would not employ him or provide him with access to its Confidential
Information but for his covenants or promises contained in this Section.
The
Company and Executive agree and stipulate that the agreements and covenants
not
to compete contained in this Section 9 hereof are fair and reasonable in
light of all of the facts and circumstances of the relationship between
Executive and the Company; provided however, Executive and the Company are
aware
that in certain circumstances courts have refused to enforce certain terms
of
agreements not to compete. Therefore, in furtherance of, and not in derogation
of the provisions of this Section 9, the Company and Executive agree that
in the event a court should decline to enforce any terms of any of the
provisions of this Section 9, that this Section 9 shall be deemed to
be modified or reformed to restrict Executive’s competition with the Company to
the maximum extent, as to time, geography and business scope, which the court
shall find enforceable; provided however, in no event shall the provisions
of
this Section 9 be deemed to be more restrictive to Executive than those
contained herein.
Executive
agrees that during the Noncompetition Term, he shall immediately notify the
Company in writing of any employment, work or business he undertakes with or
on
behalf of any person (including himself) or entity, whether or not for
compensation.
10. Non-Interference
or Solicitation.
Executive agrees that during the Employment Period and for an additional period
of one (1) year following the termination of his employment with the Company
(for whatever reason) that neither he nor any individual, partner(s), limited
partnership, corporation or other entity or business in which Executive has
any
affiliation and influence, or any employee of such entity or business that
Executive influences, will request, solicit, encourage, induce or attempt to
influence, directly or indirectly, (i) any employee of the Company to
terminate his or her employment with the Company, or (ii) any
past
or present customer, client, partner, investor or contractor of the Company
to
terminate or limit his, her or its relationship with the Company, or
in
any
way interfere with the relationship between the Company and any such customer,
client, partner, investor or contractor.
11. Return
of Documents.
Executive agrees that if Executive’s employment with the Company is terminated
(for whatever reason), Executive shall not take with Executive, but will leave
with the Company, all, Confidential Information, records, files, memoranda,
reports, documents and other information that is the property of the Company,
in
whatever form (including on computer disk), and any copies thereof, or if such
items are not on the premises of the Company, Executive agrees to return such
items immediately upon Executive’s termination or any time at the request of the
Company. Executive acknowledges that all such items are and remain the property
of the Company.
12. Severability
and Reformation.
If any
provision of this Agreement is held to be illegal, invalid or unenforceable
under any present or future law, and if the rights or obligations of Executive
or the Company under this Agreement would not be materially and adversely
affected thereby, such provision shall be fully severable, and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part thereof, the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
the
illegal, invalid or unenforceable provision or by its severance herefrom, and
in
lieu of such illegal, invalid or unenforceable provision, there shall be added
automatically as a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible, and the Company and Executive hereby request
the
court to whom disputes relating to this Agreement are submitted to reform the
otherwise unenforceable provision in accordance with this Section 12.
13. Injunctive
Relief. Executive
acknowledges that the breach of any of the covenants contained herein,
including, without limitation, the non-disclosure covenants contained in
Section 8, the non-competition covenants in Section 9 and the
non-interference or solicitation covenants in Section 10, will give rise to
injury to the Company. Accordingly, Executive agrees that the Company shall
be
entitled to injunctive relief to prevent or cure breaches or threatened breaches
of the provisions of this Agreement and to enforce specific performance of
the
terms and provisions hereof in any court of competent jurisdiction, in addition
to any other legal or equitable remedies, which may be available. Executive
further acknowledges and agrees that the enforcement of a remedy hereunder
by
way of injunction shall not prevent Executive from earning a reasonable
livelihood. Executive further acknowledges and agrees that the covenants
contained herein are necessary for the protection of the Company’s legitimate
business interests and are reasonable in scope and content. Nothing herein
shall
prevent either party from pursuing a legal and/or equitable action against
the
other party for any damages caused by such party’s breach of this Agreement.
14. Release
Agreement. Executive
agrees that, as a condition to receiving any severance benefits or payments
under this Agreement, including those referenced in Sections 5 or 6 of this
Agreement, Executive shall execute a general release agreement in a form
reasonably acceptable to the Company, which shall include, without limitation,
a
waiver and release of all claims arising out of Executive’s service as an
employee of the Company, its subsidiaries or any of their affiliates and the
termination of such relationship. Such claims include all claims based on any
federal, state or local statute, including without limitation the Age
Discrimination in Employment Act of 1967, as amended, Title VII of the Civil
Rights Act of 1964, as amended, the Civil rights Act of 1991, as amended, the
Employee Retirement Income Security Act of 1974, as amended, the Xxxxxxxx-Xxxxx
Act, and the Texas Commission on Human Rights Act. Such release agreement shall
also contain a mutual non-disparagement provision.
15. Headings.
The
headings used in this Agreement have been inserted for convenience and do not
constitute matter to be construed or interpreted in connection with this
Agreement.
16. Governing
Law.
THIS
AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF TEXAS, WITHOUT GIVING EFFECT TO ANY PRINCIPLE OF CONFLICT OF LAWS
THAT
WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
17. Venue.
The
venue
for any dispute arising out of this Agreement or Executive’s
employment with the Company shall be any state or federal court of competent
jurisdiction in Xxxxxx County, Texas. Each party consents to the personal
jurisdiction of the state and federal courts of said county and waives any
objection that such courts are an inconvenient forum.
18. Survival.
Except
as otherwise provided herein, Executive’s termination from employment and/or the
termination of this Agreement, for whatever reason, shall not reduce or
terminate Executive’s or the Company’s covenants and agreements set forth
herein.
19. Notices.
Any
notice necessary under this Agreement shall be in writing and shall be
considered delivered three days after mailing if sent certified mail, return
receipt requested, or when received, if sent by telecopy, prepaid courier,
express mail or personal delivery to the following addresses:
|
If
to the Company:
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||
|
0
Xxxxxxxx Xxxxx
Xxxxx
0000
Xxxxxxx,
Xxxxx 00000
Attention:
Chief Financial Officer
Telecopy:
(000) 000-0000
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|
If
to Executive:
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|
Xxxx
X. Xxxxx
00000
Xxxxxx Xxxxx Xxxxxx
Xxxxxxx,
Xxxxx 00000
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20. Entire
Agreement.
Except
as provided herein, this Agreement embodies the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and supersedes all prior conflicting or inconsistent agreements, consents
and understandings relating to such subject matter. The parties acknowledge
and
agree that there is no oral or other agreement between the Company and
Executive, which has not been incorporated in this Agreement. This Agreement
may
only be modified pursuant to Section 24.
21. No
Waiver.
The
forbearance or failure of one of the parties hereto to insist upon strict
compliance by the other with any provisions of this Agreement, whether
continuing or not, shall not be construed as a waiver of any rights or
privileges hereunder. No waiver of any right or privilege of a party arising
from any default or failure hereunder of performance by the other shall affect
such party’s rights or privileges in the event of a further default or failure
of performance.
22. Assignment.
This
Agreement shall be binding upon and inure to the benefit of the Company’s
successors and Executive’s personal or legal representatives, executors,
administrators, heirs, distributees, devisees and legatees. This Agreement
shall
not be assignable by Executive, it being understood and agreed that this is
a
contract for Executive’s personal services. This Agreement shall not be
assignable by the Company except that the Company shall require any successor
to
all or substantially all of the Company’s business or assets whether direct or
indirect, by purchase, merger, consolidation or otherwise), to expressly assume
and agree 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 such assumption and agreement as part
of
any such succession shall be a breach of this Agreement and shall entitle
Executive to resign from the employ of the Company and to receive the
termination benefits hereunder as if he terminated his employment for Good
Reason. References in this Agreement to the “Company” include the Company as
hereinbefore defined and any successor to the Company’s business, assets or
both.
23. Binding
Effect.
This
Agreement shall be binding on and inure to the benefit of the parties and their
respective permitted successors and assigns.
24. Modification.
This
Agreement may be modified only by a written agreement signed by both parties.
Any such written modification may only be signed by Chief Executive Officer
of
the Company.
25. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original instrument, and all of which together shall constitute
one and the same Agreement.
26. Section
409A. Notwithstanding
any other language in this Agreement, Executive and the Company agree that
if
Executive is deemed to be a specified employee under Section 409A of the Code,
or any successor or similar provision, the payment of the severance amounts
described in Sections 5 and 6 above shall be payable on the first day of the
seventh month after the date of termination.
IN
WITNESS WHEREOF, the parties hereto have executed this Executive Employment
Agreement as of the day and year first above written.
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/s/
Xxxx X. Xxxxx
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Xxxx
X. Xxxxx
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/s/
X. Xxxx Xxxxxx
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By:
X. Xxxx Xxxxxx
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Title:
Chief Executive
Officer
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