EMPLOYMENT AGREEMENT
EXHIBIT
10.1
04/07/2006
THIS
AGREEMENT, made as of this 7 day of April, 2006, is between Orleans
Homebuilders, Inc., a Delaware corporation with offices at 0000 Xxxxxx Xxxx,
Xxx
Xxxxxxxxx Square, Bensalem, Pennsylvania 19020 (hereinafter “the Company” or
“Orleans”), and Xxxx X. Xxxxxxxxx, an individual (hereinafter called
“Employee”).
BACKGROUND
The
Company desires to employ Employee as Executive Vice President, and Employee
desires to be so employed on the terms and conditions contained in this
Agreement.
NOW
THEREFORE, in consideration of the promises and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereto agree as follows:
PARAGRAPH
1. CAPACITY AND DUTIES
1.1
Employment:
Acceptance of Employment. The
Company employs Employee, and Employee accepts employment by the Company, upon
the terms and conditions hereinafter set forth. The effective date of such
employment (the “Effective Date”) is May 1, 2006. The term of Employee’s
employment hereunder shall commence on the Effective Date and end on the third
anniversary of the Effective Date, unless sooner terminated pursuant to the
provisions of this Agreement.
1.2
Capacity
and Duties.
(a) Employee
shall be employed by the Company as Executive Vice President, and, subject
to
the supervision and control of Orleans” President or his designee, agrees to
perform such duties and responsibilities normally associated with the position
of Executive Vice President and as may be assigned to Employee from time to
time
by Orleans’ President or by his designee. Employee is required to work those
hours necessary to perform properly such duties and responsibilities normally
associated with the position of Executive Vice President and as may be assigned
to Employee from time to time by Orleans’ President or by his
designee.
(b) During
his employment hereunder, Employee shall devote his full working time, energy,
skill and best efforts to the performance of his duties hereunder and shall
not
be employed by or participate or engage in or take part in any manner in the
management or operation of any business enterprise or pursuit other than the
Company and its Affiliates. For purposes of this Agreement, “Affiliate” means
any person or entity controlling, controlled by or under common control with
the
Company. “Control”, as used herein, means the power to direct management and
policies of a person or entity, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise.
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XXXXXXXXX
2. COMPENSATION AND FRINGE BENEFITS
2.1
Compensation
(a) Base
Salary. As
compensation for Employee’s services hereunder, the Company shall pay to
Employee a salary at an annual rate of Six Hundred Thousand Dollars ($600,000)
(the “Base Salary”), payable in accordance with the Company’s regular payroll
practices in effect from time to time during the tenure of Employee’s
employment; and
(b) Bonus.
A bonus
payable semi-annually in the amount of Five Hundred Thousand Dollars ($500,000)
per annum.
2.2
Fringe
Benefits. Employee
shall be eligible to participate in the Company’s insurance and health benefit
plans, subject to their respective eligibility requirements and other terms,
conditions, restrictions and exclusions. Nothing herein shall preclude or
otherwise restrict the Company’s right to modify or terminate any insurance or
other benefit plan, policy or program as it deems appropriate in its sole
discretion. Employee shall also be entitled to those benefits set forth on
Schedule 2.1 to this Agreement.
2.3
Vacation.
Employee shall be entitled to 4 weeks of vacation during each calendar year
of
his employment.
2.4
Expense
Reimbursement. During
his employment, the Company shall reimburse Employee for all reasonable expenses
incurred by him in connection with the performance of his duties hereunder
in
accordance with its regular reimbursement policies as in effect from time to
time and upon receipt of itemized vouchers therefor and such other supporting
information as the Company may reasonably require. In addition, Company shall
reimburse Employee for his reasonable moving expenses from his present residence
in Florida to Arizona.
2.5
Payments
After Termination of Employment.
(a) Subject
to the terms and conditions set forth in Paragraph 2.5(b), if, on or before
the
third anniversary of the Effective Date, Employee is terminated by the Company
without Cause (as that term is defined below), the Company shall continue to
pay
Employee his Base Salary and any bonus to which he is entitled for the lesser
of
(i) 12 months; or (ii) the remaining term of this Agreement. These payments
shall be made according to Employee’s normal payment schedule.
(b) Employee
shall have no right to any payments under Paragraph 2.5(a) if Employee is
terminated by the Company for Cause, or (ii) terminates his
employment.
(c) Regardless
of the reason for the termination of Employee’s employment, whether by Employee
or the Company, whether for Cause or not, whether or not due to Employee’s
death, Employee (or his estate) will receive pay for any days actually worked
by
Employee prior to the termination of his employment, expense reimbursement
for
all reasonable expenses incurred by him in connection with the performance
of
his duties prior to the termination of his employment in accordance with
the
terms and conditions of Paragraph 2.4, and any pay for accrued but unused
paid
time off benefits, to the extent Employee may be eligible for same under
the
Company’s policies.
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(d) Regardless
of the reason for the termination of Employee’s employment, whether by Employee
or the Company, whether for Cause or not, whether or not due to Employee’s
death, the Employee (or his estate) shall not be eligible for any Company-paid
benefits subsequent to the termination of his employment.
PARAGRAPH
3. TERMINATION OF EMPLOYMENT
3.1 Paragraph
4 Obligations. The
termination of Employee’s employment either by Employee or by the Company,
whether with or without Cause, shall not release Employee from Employee’s
obligations and restrictions under Paragraph 4 of this Agreement. In addition,
nothing in this Agreement shall restrict the right of the Company to terminate
Employee’s employment, with or without Cause, pursuant to Paragraph
3.4.
3.2 Death
of Employee. Employee’s
employment hereunder shall immediately terminate upon his death, upon which
the
Company shall have no further obligations hereunder other than payment of
amounts (including salary, bonus, if any, and expense reimbursement), accrued
as
of the date of Employee’s death in accordance with GAAP, as conclusively
determined in the absence of bad faith or manifest error by the
Company.
3.3 Employee’s
Inability to Perform.
If
Employee is unable to perform the essential functions of his job, for any
reason, for a total of thirteen (13) weeks or more in any rolling six (6) month
period, then the Company shall have the right to terminate Employee’s employment
upon 30 days prior written notice to Employee at any time during the
continuation of such inability, in which event the Company shall have no further
obligations hereunder other than payment of amounts (including salary, bonus,
if
any, and expense reimbursement), accrued as of the date of Employee’s
termination of employment in accordance with GAAP, as conclusively determined
in
the absence of bad faith or manifest error by the Company. If Employee is able
to return to work with the Company and perform the essential functions of his
job within thirty (30) days of receipt of the written notice from the Company
described herein, then Employee’s employment will not be
terminated.
3.4 Termination
for Cause. Company
may terminate Employee’s employment at any time without prior notice for
“Cause”, which for purposes of this Agreement, shall mean any of the following:
willful misconduct, fraud, misappropriation, embezzlement, dishonesty, willful
misrepresentation, being charged by governmental authorities with or convicted
of a felony, material failure of Employee to perform his known duties and
responsibilities to the Company which persists for more than fourteen days
after
written notice, gross negligence or self dealing which persists for more than
fourteen days after written notice from the Company, or which recurs, willful
material violation in any material respect by Employee of any policy, rule,
or
reasonable direction or regulation of the Company, or material violation by
Employee of any provision of this Agreement.
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3.5 Termination
Without Cause by Company.
The
Company can terminate this Agreement and the employment relationship between
the
parties at any time and for any or no reason by providing Employee with fourteen
days written notice, which notice the Company can waive, in whole or in part,
in
its sole discretion, by paying Employee for such time; provided however, the
Company can terminate this Agreement and Employee’s employment immediately
without any prior notice in the event there is “Cause” as defined in Paragraph
3.4, in the event of Employee’s inability to perform as discussed in Paragraph
3.3, or in the event of Employee’s death as discussed in Paragraph 3.2. Upon
termination of employment pursuant to this Paragraph 3.5, and subject to the
terms and conditions set forth in Paragraph 2.5, Employee shall be entitled
to
the payments under Paragraph 2.5.
PARAGRAPH
4. RESTRICTIVE COVENANTS
4.1 Confidentiality.
Employee
shall not use for his personal benefit, or disclose, communicate or divulge
to,
or use for the direct or indirect benefit of any person, firm, association
or
company other than the Company and Orleans, any Confidential Information. For
purposes of the preceding sentence, “Confidential Information” means any
information regarding Company’s business methods, business policies, procedures,
techniques, research or development projects or results; historical or projected
financial information, budgets, trade secrets or other knowledge or processes
of
or developed by Company; any names and addresses of customers or clients or
any
data on or relating to past, present or prospective Company customers or
clients; or any other confidential information relating to or dealing with
the
business, operations or activities of Company, excepting in each case
information otherwise lawfully known generally by, or readily accessible to,
the
trade or the general public, or as required to be disclosed by law or final,
unappealable order of a court of competent jurisdiction or governmental
authority. At no time shall Employee, directly or indirectly, remove or cause
to
be removed from the premises of Company, or any Company Subsidiary any
memorandum, note, list, record, file, document or other paper, equipment or
any
like item relating to its business (including copies, extracts and summaries
thereof) except in furtherance of the performance of Employee’s duties under the
Agreement. The restrictions and obligations contained herein shall be in
addition to (and not a limitation of) any legally applicable protections of
Company’s interest in confidential information, trade secrets and the
like.
4.2 Noncompetition
and Non-Solicitation. During
the duration of Employee’s receipt of payments after termination of employment
pursuant to Paragraph 2.5(a) above, (“Restricted Period”), (i) Employee shall
not directly or indirectly engage in (as a principal, shareholder, partner,
director, officer, agent, employee, consultant or otherwise) or be financially
interested in any business operating within the State of Arizona, Florida or
Illinois (the “Restricted Area”), which is engaged in the construction or
marketing of any homes or the acquisition or development of any property for
residential purposes; provided, however, nothing contained in this Paragraph
4.2
shall prevent Employee from holding for investment no more than two percent
(2%)
of any class of equity securities of a company whose securities are publicly
traded on a national securities exchange or in a national market system; (ii)
Employee shall not directly or indirectly induce or attempt to influence any
employee, customer, client, independent contractor or supplier of Company to
terminate employment or any other relationship with Company; and (iii) Employee
shall not directly or indirectly induce or attempt to induce any person who
is
or was within the preceding year an employee of Company to establish an
employment relationship with ay other person or entity.
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4.3 Injunctive
and Other Relief.
(a) Employee
acknowledges that the restrictions contained in this Paragraph 4, in view of
the
nature of the business in which the Company is engaged, are reasonable and
necessary in order to protect the legitimate interests of the Company, that
their enforcement will not impose a hardship on Employee or significantly impair
his ability to earn a livelihood, and that any violation thereof would result
in
irreparable injuries to the Company. Employee therefore acknowledges that,
in
the event of Employee’s violation of, or threatened violation of, any of these
restrictions, the Company shall be entitled to obtain from any court of
competent jurisdiction preliminary and permanent injunctive relief as well
as
damages, including, subject to Paragraph 4.3(b) hereof, the Company’s legal and
other costs of enforcing Employee’s compliance with these restrictions, and an
equitable accounting of all earnings, profits and other benefits arising from
such violation, which rights shall be cumulative and in addition to any other
rights or remedies to which the Company may be entitled.
(b) In
the
event that the Company or the Employee incur counsel fees or other costs and
expenses in connection with the enforcement of any and all of its rights under
this Agreement, including any arbitration proceeding pursuant to Paragraph
5
hereof, the substantially prevailing party shall be entitled to receive
reasonable attorneys’ fees and costs an expenses in connection with the
enforcement of such prevailing party’s rights.
(c) If
the
Restricted Period or the Restricted Area specified in Paragraph 4.2 above should
be adjudged unreasonable in any proceeding, then the period of time shall be
reduced by such amount or the area shall be reduced by the elimination of such
portion or both such reductions shall be made so that such restrictions may
be
enforced for such time and in such area as is adjudged to be reasonable. If
Employee violates any of the restrictions contained in Paragraph 4.2, the
Restricted Period shall be extended by a period equal to the length of time
from
the commencement of any such violation until such time as such violation shall
be cured by Such Employee to the satisfaction of Company. The Company shall
have
the right and remedy to require Employee to account for and pay over to the
Company all compensation, profits, monies, accruals, increments or other
benefits derived or received by Employee as the result of any transactions
constituting a breach of this Paragraph 4, and Employee shall account for and
pay over such amounts to the Company upon the Company’s request therefor. The
Employee hereby expressly consents to the jurisdiction of any court within
the
Restricted Area to enforce the provisions of this Paragraph 4, and agrees to
accept service of process by mail relating to any such proceeding. The Company
may supply a copy of Paragraph 4 of this Agreement to any future or prospective
employer of Employee or to any person to whom Employee has supplied information
if the Company determines that there is a reasonable likelihood that Employee
has violated or will violate this Paragraph 4.
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PARAGRAPH
5. ARBITRATION
5.1 All
disputes, claims, or controversies (“claims”) arising out of or in connection
with Employee’s employment and/or termination of employment, except as set forth
in Paragraph 5.10 below, shall exclusively be submitted to final and binding
arbitration, before a single arbitrator, in accordance with the then current
American Arbitration Association (“AAA”) National Rules for the Resolution of
Employment Disputes (“AAA Rules”).
5.2 Employee’s
duty to arbitrate covers, but is not limited to: any claims relating to or
arising out of Employee’s employment with and/or termination of employment by
the Company and/or any of its related and/or affiliated companies; any claims
for unpaid or withheld wages, severance, benefits, bonuses, and/or other
compensation of any kind; any claims arising under the Employee Retirement
Income Security Act; any claims for attorneys’ fees, costs or expenses; any
claims of discrimination and/or harassment based on age, sex, race, religion,
color, creed, disability, handicap, citizenship, national origin, ancestry,
sexual orientation, or any other factor protected by Federal, State or Local
law; any claims for retaliation and/or any whistleblower claims; any claims
for
emotional distress or pain and suffering; and/or any other statutory or common
law claims, now existing or hereinafter recognized, known or unknown, including,
but not limited to, breach of contract, libel, slander, fraud, wrongful
discharge, promissory estoppel, equitable estoppel and
misrepresentation.
5.3 In
agreeing to submit to arbitration all claims arising out of or in connection
with Employee’s employment and/or termination of employment, except as set forth
in Paragraph 5.10 below, Employee and Company are voluntarily and knowingly
waiving their right to trial by jury.
5.4 To
start
the arbitration process, Employee or Company must submit a written request
to
AAA within one (1) year of the date on which the event giving rise to a cause
of
action occurs. The arbitration is to take place in or near the city in which
Employee is or was last employed by the Company. Any failure to request
arbitration within this time frame shall constitute a waiver of all rights
by
Employee or Company to raise any claims in any forum arising out of any Claim
that was subject to arbitration.
5.5
The
arbitrator shall be selected in accordance with the AAA Rules, and shall be
a former judge.
5.6
The
AAA, in cooperation with the arbitrator and the parties, shall set the date,
time and place of the hearing.
5.7 The
arbitrator shall have all of the power of a court of law and equity, including
the power to order discovery, in the arbitrator’s discretion, as is available
under the then current Federal Rules of Civil Procedure, and to grant legal
and
equitable remedies.
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5.8 The
decision of the arbitrator shall be in writing and set forth the findings and
conclusion upon which the decision is based. The decision of the arbitrator
shall be final and binding and may be enforced under the terms of the Federal
Arbitration Act (9 U.S.C. Paragraph 1 et seq.). Judgment upon the award may
be
entered, confirmed and enforced in any federal or state court of competent
jurisdiction.
5.9 The
Company shall bear the full cost of the arbitrator’s fee. The Company and
Employee shall bear their respective filing fees and attorneys’ fees. However,
the arbitrator may award Employee reimbursement for his filing fees and
attorneys’ fees in accordance with applicable law.
5.10 It
is
expressly agreed that at the sole election of the Company, the Company may
bring
in any court of competent jurisdiction, any claims for special, temporary or
permanent injunctive relief against Employee for misappropriation of
confidential information, tortuous interference with contractual relations,
or
violation of any covenant against competition or non-solicitation agreement
as
stated more fully in Paragraph 4 above. Any damages with respect to such claims
may be pursued in any court of competent jurisdiction in conjunction with a
cause of action set forth in Paragraph 4 and/or in this Paragraph 5.10 including
any counter-claims by Employee. This Agreement does not preclude Employee from
filing claims with any federal, state, or local administrative
agency.
5.11 If
any
provision of this Arbitration Agreement is construed by a court of competent
jurisdiction or arbitrator to be invalid or unenforceable, the remainder of
this
Agreement shall not be affected and the remaining provisions shall be given
full
force and effect without regard to the unenforceable provisions.
PARAGRAPH
6. MISCELLANEOUS
6.1 Prior
Employment. Employee
represents and agrees that, on the date hereof, he is not a party to, and will
not as of the Effective Date be a party to, any other employment,
non-competition, joint venture, partnership or other agreement or restriction
that could interfere with his employment with the Company or his or the
Company’s rights and obligations hereunder; and that his employment and the
performance of his duties hereunder will not breach the provisions of any
contract, agreement, or understanding to which he is party or any duty owed
by
him to any other person. Employee warrants and covenants that he will not
hereafter become a party to or be bound by any such conflicting
agreement.
6.2 Severability.
The invalidity or unenforceability of any particular provision or part of any
provision of this Agreement shall not affect the other provisions or parts hereof.
If any provision hereof is determined to be invalid or unenforceable by a court
of competent jurisdiction by reason of the duration or scope of the covenants
contained therein, such duration or scope, or both, shall be considered to be
reduced to a duration or scope to the extent necessary to cure such invalidity.
6.3 Notices.
All notices hereunder shall be in writing and shall be sufficiently given in
hand-delivered, sent by documented overnight delivery service or registered
or certified mail, postage prepaid, return receipt request or by telegram, fax
or telecopy (confirmed by U.S. mail), receipt acknowledged, addressed as set
forth below or to such other person and/or at such other address as may be furnished
in writing by any party hereto to the other. Any such notice shall be deemed
to have been given as of the date received, in the case of personal delivery,
or on the date shown on the receipt of confirmation therefor, in all other cases.
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(a) If
to
Company:
One
Greenwood Square
0000
Xxxxxx Xxxx
Xxxxx
000
Xxxxxxxx,
XX 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Attn: Xxxxxxxx
X. Xxxxxxx, Vice Chairman
(b) If
to
Employee:
At
Employee’s current home address as reflected in the Company’s
records.
6.4 Entire
Agreement and Modification. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the matters contemplated herein and supersedes all prior agreements
and understandings with respect thereto. No amendment, modification, or waiver
of this Agreement shall be effective unless in writing. Neither the failure
nor
any delay on the part of any party to exercise any right, remedy, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single
or
partial exercise of any right, remedy, power or privilege preclude any other
of
further exercise of the same or any other right, remedy, power, or privilege
with respect to any occurrence or be construed as a waiver of any right, remedy,
power, or privilege with respect to any other occurrence.
6.5 Governing
Law. The
parties agree that this Agreement is made pursuant to, and shall be construed
an
enforced in accordance with, the internal laws of the Commonwealth of
Pennsylvania (and United States federal law, to the extent applicable), without
giving effect to otherwise applicable principles of conflicts of
law.
6.6 Headings;
Counterparts.
The headings of paragraphs in this Agreement are for convenience only and shall
not affect its interpretation. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which,
when taken together, shall be deemed to constitute but one and the same Agreement.
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IN
WITNESS WHEREOF, and intending to be legally bound, the parties have executed
this Agreement as of the date first above written.
ORLEANS HOMEBUILDERS, INC. | EMPLOYEE | ||
By: | XXXXXXXX X. XXXXXXX | XXXX X. XXXXXXXXX | |
|
|
||
Xxxxxxxx X. Xxxxxxx | Xxxx X. Xxxxxxxxx | ||
Vice Chairman |
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SCHEDULE
2.1 TO EMPLOYMENT CONTRACT
Automobile
$500
per
month plus reasonable expenses for insurance, gas and maintenance
Cellular
Phone
Company
issued for business use
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