Exhibit 10.11
FORM OF
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT (this "Agreement") is dated as of
______________, 2003, by and among Xxxxxxx Properties, Inc., a Maryland
corporation (the "Company") and Xxxxxxx X. Xxxxxxxxx (the "Executive").
WHEREAS, the Executive, Xxxxxxx Partners - Master Investments, LLC, a
California limited liability company ("Masters"), an entity of which the
Executive is a member, and certain other parties entered into a Contribution
Agreement, dated as of November 5, 2002 (the "Contribution Agreement"), pursuant
to which Masters agreed to contribute to the Operating Partnership, all of its
right, title and interest, as a partner or member, in each of the partnerships
and limited liability companies which hold an interest in certain office and
other properties located in Southern California and Texas (the "Contributed
Properties"), in exchange for a limited partnership interest in Xxxxxxx
Properties, L.P., a Maryland limited partnership (the "Operating Partnership"),
the general partner of which is the Company;
WHEREAS, concurrently with the execution of this Agreement, the Company
and the Executive have entered into an employment agreement, pursuant to which
the Company has agreed to employ the Executive, and the Executive has agreed to
be employed by the Company, as its Co-Chief Executive Officer and President, and
the Executive desires to serve on the Company's Board of Directors, if nominated
and elected (the "Employment Agreement"); and
WHEREAS, the Company and the Executive agree that, in connection with the
contribution of the Contributed Properties to the Operating Partnership and the
execution of the Employment Agreement and the Executive's employment, the
Executive will not engage in competition with the Company pursuant to the terms
and conditions hereof.
NOW, THEREFORE, in furtherance of the foregoing and in exchange for good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Noncompetition.
(a) For as long as the Executive is employed as Co-Chief Executive
Officer or President by the Company (or any successor thereto) or serves as a
member of the Board of Directors of the Company (or the Board of Directors of
any successor to the Company) and for one year after ceasing to serve in either
capacity, whichever is later, the Executive shall be prohibited from engaging in
Competition (as defined below) with the Company or any of its subsidiaries or
affiliates.
(b) The term "Competition" for purposes of this Agreement shall mean
the taking of any of the following actions by the Executive: (i) the conduct,
directly or indirectly, of any business involving real property development,
acquisition, sale or management, whether such business is conducted by the
Executive individually or as
principal, partner, officer, director, consultant, employee, stockholder or
manager of any person, partnership, corporation, limited liability company or
any other entity; and (ii) ownership of interests in real property which are
competitive, directly or indirectly, with any business carried on by the Company
(or any successor thereto) or its subsidiaries or affiliates; provided, however,
that the term "Competition" shall be deemed to exclude (A) a passive ownership
interest in Commonwealth Partners (which, the Operating Partnership
acknowledges, engages in business directly competitive with the Operating
Partnership), (B) a passive ownership interest in Masters (which, the Operating
Partnership acknowledges, intends to engage in small industrial, retail,
residential and office development), provided that Executive shall not directly
or indirectly invest more than $3.0 million in equity capital in Masters, (C)
the direct or indirect ownership by the Executive of up to five percent of the
outstanding equity interests of any public company, (D) residential real estate,
and (E) during the one year "tail" period set forth in Section 1(a) only, the
Executive's conduct of business or ownership of property in geographical areas
other than the geographical areas in which the Company or any of its
subsidiaries or affiliates conducts business.
(c) If the Executive's employment is terminated by the Company
without Cause (as defined in the Employment Agreement), by the Executive for
Good Reason (as defined in the Employment Agreement) at any time, whether before
or after a Change of Control (as defined in the Employment Agreement), or by the
Executive for any reason on or within 30 days after the one year anniversary of
the effective date of a Change in Control, the prohibitions set forth herein
shall lapse on the earlier to occur of (i) the first anniversary of the date of
termination of the Executive's employment as Co-Chief Executive Officer and
President or as a member of the Board, whichever is later, or (ii) the date on
which the Executive ceases to receive any cash severance payments or other
material severance benefits from the Company under the Employment Agreement.
2. Specific Performance. The Executive acknowledges that in the event of
breach by the Executive of the terms of Section 1 hereof, the remedies at law
available to the Company and to the Operating Partnership may be inadequate and
the Company and the Operating Partnership shall be entitled to specific
performance of this Agreement by the Executive and to enjoin the Executive from
any further violation of Section 1 hereof and to exercise such remedies
cumulatively or in conjunction with all other rights and remedies provided by
law and not otherwise limited by this Agreement. The Executive hereby
acknowledges and agrees that the Company shall not be required to post bond as a
condition to obtaining or exercising such remedies, and the Executive hereby
waives any such requirement or condition.
3. Attorneys Fees. If any legal action, arbitration or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach or default in connection with any of the provisions of this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees and
other costs incurred in that action or proceeding, including any appeal of such
action or proceeding, in addition to any other relief to which that party may be
entitled.
4. Severability. Any provision of this Agreement which is deemed invalid,
illegal or unenforceable in any jurisdiction shall, as to that jurisdiction and
subject to this paragraph, be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that any other provisions of this Agreement invalid,
illegal or unenforceable in any other jurisdiction. Notwithstanding the
foregoing, if any provision of this Agreement should be deemed invalid, illegal
or unenforceable because its scope or duration is considered excessive, such
provision shall be modified so that the scope of the provision is reduced only
to the minimum extent necessary to render the modified provision valid, legal
and enforceable.
5. Governing Law. This Agreement shall be governed, construed, interpreted
and enforced in accordance with the laws of the State of California, without
regard to the conflict of laws principles thereof.
6. Entire Agreement. This Agreement, together with the Employment
Agreement, contains the entire agreement and understanding between the Company,
the Operating Partnership and the Executive with respect to the subject matter
hereof, and no representations, promises, agreements or understandings, written
or oral, not herein contained shall be of any force or effect. This Agreement
shall not be changed unless in writing and signed by both the Executive and the
Board of Directors of the Company.
7. Assignment. This Agreement may not be assigned by the Executive, but
may be assigned by the Company and the Operating Partnership to any successor to
its business and will inure to the benefit of and be binding upon any such
successor.
8. Notice. For the purposes of this Agreement, notices, demands and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given (i) when personally delivered, (ii) when
transmitted by telecopy, electronic or digital transmission with receipt
confirmed, (iii) one day after delivery to a nationally recognized overnight air
courier guaranteeing next day delivery, or (iv) upon receipt if sent by
certified or registered mail. In each case, notice shall be sent to:
If to the Executive: Xxxxxxx X. Xxxxxxxxx
c/o Maguire Partners
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company
and to the Operating Partnership: Xxxxxxx Properties, Inc.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx III and Xxxx Lammas
9. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
10. Executive's Acknowledgment. The Executive acknowledges (a) that he has
had the opportunity to consult with independent counsel of his own choice
concerning this Agreement, and (b) that he has read and understands this
Agreement, is fully aware of its legal effect, and has entered into it freely
based on his own judgment.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date and year first above written.
Xxxxxxx Properties, Inc.,
a Maryland corporation
By:
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Xxxxxx Xxxxx
Chief Financial Officer
Xxxxxxx Properties, L.P.,
a Maryland limited partnership
By: Xxxxxxx Properties, Inc.,
a Maryland corporation,
Its: General Partner
By:
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Xxxxxx Xxxxx
Chief Financial Officer
Xxxxxxx X. Xxxxxxxxx
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