EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into on the
31st day of August, 1999 by and between CNL American Properties Fund, Inc., a
Florida corporation (the "Company") and Xxxxxxx Xxxx ("Executive").
Preliminary Statement
WHEREAS, the Company desires to employ or continue to employ Executive,
and Executive desires to be employed by the Company; and
WHEREAS the Company and Executive desire to enter into this Agreement
which sets forth the terms and conditions of Executive's employment;
NOW, THEREFORE, in consideration of the mutual covenants set forth
below, the Company and Executive agree as follows:
1. Employment. The Company hereby employs the Executive, and Executive
agrees to serve the Company, on the terms and conditions set forth below. Except
as otherwise provided in this Agreement, Executive's employment shall be subject
to the employment policies and practices of the Company in effect from time to
time during the Term of Executive's employment.
2. Term of Agreement. The Term of Executive's employment pursuant to
this Agreement shall commence on the effective date of the merger of CNL
Financial Services, CNL Financial Corporation and CNL Fund Advisors into CNL
American Properties Fund, Inc. and shall continue in effect for a period of
three years thereafter, unless terminated sooner in accordance with Section 5
below ("Term").
3. Position and Duties. The Executive shall serve as Senior Vice
President of the Company and shall have such duties, authority and
responsibilities as are normally associated with and appropriate for such
position. The Executive shall devote substantially all of his working time and
efforts to the business and affairs of the Company, except that Executive may
perform personal or charitable activities which do not interfere with
Executive's employment duties with the approval of the Chief Executive Officer
of the Company.
4. Compensation and Related Matters.
4.1 Base Salary. During the Term of his employment, the Company
shall pay to Executive a Base Salary as specified in Attachment A to this
Agreement. ("Base Salary"). Base Salary shall be paid in equal installments in
accordance with the Company's usual and customary payroll practices, but not
less frequently than monthly. Base Salary may be increased each year in the
discretion of the Company, or as otherwise specified in Attachment A.
4.2 Bonus and Additional Compensation. Executive shall be entitled
to receive such bonus and additional compensation, including stock options, as
specified in Attachment A.
4.3 Benefit Plans and Arrangements. Executive shall be entitled to
participate in and to receive benefits under all existing and future employee
benefit plans, perquisites and fringe benefit programs of the Company that are
provided to other similarly situated executives of the Company, on terms no less
favorable than those provided to such other executives, to the extent Executive
is eligible under the terms of such plans or programs, including any deferred
compensation plan.
4.4 Expenses. The Company shall promptly reimburse Executive for
all reasonable and customary expenses incurred by Executive in performing
services for the Company, including all expenses of travel while away from home
on business or at the request of and in the service of the Company, provided
that such expenses are incurred and accounted for by Executive in accordance
with the policies and procedures established by the Company.
4.5 Vacations. The Executive shall be entitled to no fewer than 15
vacation days per year.
5. Termination. The Term of Executive's employment pursuant to this
Agreement may be terminated under the following circumstances:
5.1 Death. The Term of Executive's employment shall terminate upon
his death.
5.2 Disability. The Company may terminate the Term of Executive's
employment as a result of Executive's Disability. For purposes of this
Agreement, "Disability" is defined as the inability, by reason of illness or
other physical or mental incapacity or limitation, of the Executive
substantially to perform the duties of his employment with the Company, which
inability continues for at least one hundred twenty (120) consecutive days, or
for shorter periods aggregating one hundred twenty (120) days during any
consecutive twelve (12) month period.
5.3 By Company for Cause. The Company may terminate the Term of
Executive's employment for "Cause" upon written notice to the Executive. For
purposes of this Agreement, the Company shall have "Cause" to terminate
Executive's employment upon any of the following events:
(i) Executive's continued failure to perform or his habitual
neglect of his duties;
(ii) Executive's conviction of, plea of nolo contendre to, or
indictment for (which indictment is not discharged or
otherwise resolved within 12 months) any felony, or any crime
involving moral turpitude, or any crime which is likely to
result in material injury to the Company;
(iii)Executive's breach of a fiduciary duty relating to the
Executive's employment with the Company, including but not
limited to an act of fraud, theft or dishonesty; or
(iv) Executive's material breach of this Agreement.
Notwithstanding the foregoing, Executive shall not be deemed to
have been terminated for Cause under clause (i) or (iv) unless the Company
provided reasonable written notice to the Executive setting forth the reasons
for the Company's intention to terminate for Cause, and Executive failed within
thirty (30) days to cure the event or deficiency set forth in the written
notice.
5.4 By Company Without Cause. The Company may terminate the Term of
Executive's employment other than for Cause, death or Disability at any time
upon sixty (60) days prior written notice to Executive.
5.5 By Executive for Good Reason. Executive may terminate his
employment for "Good Reason" upon written notice to the Company. For purposes of
this Agreement, "Good Reason" shall include the following events unless
otherwise consented to by the Executive:
(i) The assignment to Executive of any duties materially
inconsistent with Executive's position, duties,
responsibilities and status within the Company;
(ii) A material reduction in Executive's reporting responsibilities
not pertaining to job performance issues;
(iii)A reduction in the Base Salary of the Executive not pertaining
to job performance issues;
(iv) A requirement by the Company that Executive's work location be
moved more than 50 miles of the Company's principal place of
business in Orlando, Florida;
(v) The Company's material breach of this Agreement; or
(vi) The Company's failure to obtain an agreement from any
successor to the business of the Company by which the
successor assumes and agrees to perform this Agreement.
Notwithstanding the foregoing, Executive shall not be deemed to have
terminated his employment for Good Reason under clause (i), (ii), (iii), (iv) or
(v), unless the Executive provided reasonable written notice to the Company
setting forth the reasons for the Executive's intention to resign for Good
Reason, and the Company failed within thirty (30) days to cure the event or
deficiency set forth in the written notice.
6. Compensation in the Event of Termination. In the event Executive's
employment pursuant to this Agreement terminates prior to the end of the Term of
this Agreement, the Company shall pay Executive compensation as set forth below:
6.1 By Company Without Cause; By Executive for Good Reason. In the
event that Executive's employment is terminated by the Company without Cause, or
by the Executive for Good Reason, the Company shall pay Executive a cash payment
equal to one and one-half (1 1/2) times the Executive's Base Salary which is in
effect on the date of the Executive's termination. This cash payment shall be
made payable in equal installments in accordance with the Company's usual and
customary payroll practices, commencing on the first payday following
Executive's termination. The Company shall also permit the Executive, for a
period of one (1) year, to participate in all welfare and benefit plans on the
same terms as other similarly situated, active executives of the Company, to the
extent Executive is eligible under the terms of such plans. Within thirty (30)
days of the date of termination of Executive's employment, the Company shall
also pay Executive a lump sum equal to the sum of: (i) any accrued but unpaid
Base Salary and vacation due Executive as of the date of termination of
employment; and (ii) reimbursements for appropriately submitted expenses which
have been incurred, but have not been paid by the Company, as of the date of
termination. In addition, any stock that would otherwise vest during the next
twelve months would become immediately vested and remain exercisable for no more
than ninety (90) days following termination or, if shorter, for the balance of
the regular term of the options.
6.2 By Company for Cause; by Executive Without Good Reason. In the
event that the Company terminates Executive's employment for Cause, or Executive
terminates his employment without Good Reason, all compensation or benefits to
which Executive may otherwise be entitled shall cease on the date of
termination, except for (i) any accrued but unpaid Base Salary due Executive as
of the date of termination of employment; and (ii) reimbursements for
appropriately submitted expenses which have been incurred, but have not been
paid by the Company, as of the date of termination.
6.3 Death or Disability. In the event that the Company terminates
Executive's employment due to his death or Disability, the Company shall pay the
Executive or his estate a lump sum equal to six months of Executive's Base
Salary, payable within thirty (30) days of Executive's termination. This payment
shall be in addition to, rather than in lieu of, the entitlement of Executive or
his estate to any other insurance or benefit proceeds as a result of his death
or Disability.
7. Non-Competition, Non-Solicitation and Confidentiality.
7.1 Covenant Not to Compete. While employed by the Company or any
affiliate of the Company and for a period of eighteen (18) months thereafter,
Executive shall not, directly or indirectly, for compensation or otherwise,
engage in or have any interest in any sole proprietorship, partnership,
corporation, business or any other person or entity (whether as an employee,
officer, director, partner, agent, security holder, creditor, consultant or
otherwise) that, directly or indirectly, competes with the business enterprises
in which the Company or its subsidiaries are now or during Executive's
employment become engaged (collectively, the "Benefited Persons") in any and all
states in which the Company or any other Benefited Person conducts such business
while Executive is employed by the Company or a subsidiary of the Company.
Notwithstanding the foregoing, Executive may continue to hold Company securities
or acquire, solely as an investment, shares of capital stock or other equity
securities of any company which are traded on any national securities exchange
or are regularly quoted in the over-the-counter market, so long as Executive
does not control, acquire a controlling interest in, or become a member of a
group which exercises direct or indirect control of more than five percent (5%)
of any class of capital stock of such corporation.
7.2 Nonsolicitation of Clients. While employed by the Company or
any affiliate of the Company and for a period of eighteen (18) months
thereafter, Executive shall not, directly or indirectly, for himself or for any
other person, firm, corporation, partnership, association or other entity,
solicit, attempt to contract with, or enter into a contractual relationship of
any kind pertaining to any aspect of the development or lease of real property,
with any person or entity with which the Company or any affiliate of the
Company, had any contractual relationship or engaged in negotiations toward a
contract in the previous twelve (12) months. Upon the termination of Executive's
employment with the Company, the Company or an affiliate of the Company shall
furnish to Executive a list of the persons and entities that are the subjects of
this provision.
7.3 Nonsolicitation of Employees. While employed by the Company or
any affiliate of the Company and for a period of eighteen (18) months
thereafter, Executive shall not directly or indirectly, for himself or for any
other person, firm, corporation, partnership, association or other entity,
solicit, attempt to employ or enter into any contractual arrangement with any
employee or former employee of the Company or any Benefited Person, unless such
employee or former employee has not been employed by the Company or other
Benefited Person for a period in excess of six (6) months.
7.4 Nondisparagement.While employed by the Company or any affiliate
of the Company and after Executive's employment terminates, Executive shall not
disparage, denigrate or comment negatively upon, either orally or in writing,
the Company, any Benefited Person, or any of their officers or directors, to or
in the presence of any person or entity, unless compelled to do so by subpoena
or other legal mandate. The Company likewise shall not disparage, denigrate or
comment negatively upon, either orally or in writing, the Executive to any
prospective employer or third party after Executive's employment terminates
unless compelled to do so by subpoena or other legal mandate.
7.5 Confidentiality. While employed by the Company or any affiliate
of the Company and after Executive's employment terminates, Executive shall keep
secret and retain in strictest confidence, and shall not use for his benefit or
the benefit of others, except in connection with the business affairs of the
Benefited Persons, all information relating to the business of any of the
Benefited Persons, including, without limitation, information concerning the
financial condition, prospects, methods of doing business, marketing and
promotion of services, disclosed to or known by the Executive as a consequence
of his employment by the Company or any affiliate of the Company, which
information is not generally known or otherwise obtainable in the public domain.
8. Tangible Items. All files, records, documents, manuals, books,
forms, reports, memoranda, studies, data, calculations, recordings, or
correspondence, in whatever form they may exist, and all copies, abstracts and
summaries of the foregoing, and all physical items related to the business of
Company or any Benefited Person, whether of a public nature or not, and whether
prepared by Executive or not, are and shall remain the exclusive property of
Company or any Benefited Person, and shall not be removed from their premises,
except as required in the course of Executive's employment by Company, without
the prior written consent of the Company. Such items shall be promptly returned
by Executive on the termination of Executive's employment with the Company or at
any earlier time upon the request of the Company.
9. Remedies.
9.1 Injunctive Relief. The Company and Executive acknowledge and
agree that a breach by Executive of any of the covenants contained in Section 7
of this Agreement will cause irreparable harm and damage to the Company and/or
any other Benefited Person, the monetary amount of which may be virtually
impossible to ascertain. Accordingly, Executive acknowledges that the Company
and/or any other Benefited Person affected shall be entitled to an injunction
from any court of competent jurisdiction enjoining and restraining any violation
of said covenants by Executive or any of his affiliates, associates, partners or
agents, either directly or indirectly, and that such right to injunction shall
be cumulative and in addition to other remedies the Company or such other
Benefited Person may possess. In addition, Executive acknowledges that in the
event of his breach of any of the provisions of Section 7 of this Agreement, in
addition to any other remedies the Company may have, the Company may cease
making the periodic payments specified in Section 6.1 as an offset against the
damages suffered by the Company and any other Benefited Person on account of
such breach.
9.2 Arbitration. Except with regard to Section 7, all disputes
between the parties concerning the performance, breach, construction or
interpretation of this Agreement, or in any manner arising out of this
Agreement, shall be submitted to binding arbitration in accordance with the
rules of the American Arbitration Association, which arbitration shall be
carried out in the manner set forth below:
(i) Within fifteen (15) days after written notice by one
party to the other party of its demand for
arbitration, which demand shall set forth the name
and address of its designated arbitrator, the other
party shall select its designated arbitrator and so
notify the demanding party. Within fifteen (15) days
thereafter, the two arbitrators so selected shall
select the third arbitrator. The dispute shall be
heard by the arbitrators within ninety (90) days
after selection of the third arbitrator. The decision
of any two arbitrators shall be binding upon the
parties. Should any party or arbitrator fail to make
a selection, the American Arbitration Association
shall designate such arbitrator upon the application
of either party. The decision of the arbitrators
shall be final and binding upon the Company, its
successors and assigns and Executive.
(ii) The arbitration proceedings shall take place in
Orlando, Florida, and the judgment and determination
of such proceedings shall be binding on all parties.
Judgment upon any award rendered by the arbitrators
may be entered into any court having competent
jurisdiction without any right of appeal.
(iii) Each party shall pay its or his own expenses of
arbitration, and the expenses of the arbitrators and
the arbitration proceeding shall be shared equally.
However, if in the opinion of a majority of the
arbitrators, any claim or defense was unreasonable,
the arbitrators may assess, as part of their award,
all or any part of the arbitration expenses of the
other party (including reasonable attorneys' fees)
and of the arbitrators and the arbitration proceeding
(collectively, the "Arbitration Expenses") against
the party raising such unreasonable claim or defense;
and if the arbitrators rule in favor of Executive,
then the Company shall be obligated to pay all of the
Arbitration Expenses.
10. Severability. The Company and Executive agree that if, in any
action before any court or agency legally empowered to enforce this Agreement,
any term, restriction, covenant, or promise is found to be unreasonable or
otherwise unenforceable, then such term, restriction, covenant, or promise shall
be deemed modified to the extent necessary to make it enforceable.
11. Notice. For purposes of this Agreement, notices, demands and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when received if delivered in person, or by
overnight courier or if mailed by United States registered mail, return receipt
requested, postage prepaid, to the following addresses:
If to Executive:
Xxxxxxx Xxxx
0000 Xxxxxx Xxx
Xxxxxx, Xxxxxxx 00000
If to Company:
CNL American Properties Fund, Inc.
000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Xx.
Either party may change its address for notices in accordance with this Section
by providing written notice of such change to the other party.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
13. Benefits; Binding Effect. This Agreement shall be for the benefit
of and binding upon the parties and their respective heirs, personal
representatives, legal representatives, successors and assigns. If Executive is
transferred to an affiliate of the Company, such affiliate will assume this
Agreement and upon assumption shall be deemed "the Company" under this
Agreement.
14. Entire Agreement. This Agreement, including its incorporated
Attachment A, constitutes the entire agreement between the parties, and all
prior understandings, agreements or undertakings between the parties concerning
Executive's employment or the other subject matters of this Agreement are
superseded in their entirety by this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
By:
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Witness
Date:
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On behalf of the Company
By:
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Witness (Executive)
Date:
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