Exhibit 10.5
EMPLOYMENT AND NONCOMPETITION AGREEMENT
This EMPLOYMENT AND NONCOMPETITION AGREEMENT ("Agreement") is made as of
the ____ day of ________, 1997 between ________________ ("Executive") and XX
Xxxxx Realty Corp., a Maryland corporation with its principal place of business
at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Employer").
1. TERM. The term of this Agreement shall commence on the date first
above written and, unless earlier terminated as provided in Section 6 below,
shall terminate on the third anniversary of the closing of the initial public
offering (the "IPO") of the Employer's Common Stock, $.01 par value per share
(the "Original Term"); PROVIDED, HOWEVER, that Section 8 hereof shall survive
the termination of this Agreement as provided therein. The Original Term may be
extended for such period or periods, if any, as may be mutually agreed to by
Executive and the Employer (each a "Renewal Term"). The period of Executive's
employment hereunder consisting of the Original Term and all Renewal Terms, if
any, is herein referred to as the "Employment Period".
2. EMPLOYMENT AND DUTIES.
(a) DUTIES. During the Employment Period, Executive shall be
employed in the business of the Employer and its affiliates. Executive
shall serve the Employer as a senior corporate executive with the
title_____________________________________ of the Employer. Executive's
duties and authority shall be as set forth in the By-laws of the Employer
and as otherwise established from time to time by the Board of Directors of
the Employer, and shall be commensurate with his titles and positions with
the Employer.
(b) BEST EFFORTS. Executive agrees to his employment as described in
this Section 2 and agrees to devote substantially all of his business time
and efforts to the performance of his duties under this Agreement, except
as otherwise approved by the Board of Directors of the Employer; PROVIDED,
HOWEVER, that nothing herein shall be interpreted to preclude Executive
from (i) participating as an officer or director of, or advisor to, any
charitable or other tax exempt organization or otherwise engaging in
charitable, fraternal or trade group activities, [(ii) acting as
_________________], or (iii) investing his assets as a passive investor in
other entities or business ventures, provided that he performs no
management or similar role with respect to such entities or ventures and
such investment does not violate Section 8 hereof.
(c) TRAVEL. In performing his duties hereunder, Executive shall be
available for all reasonable travel as the needs of the Employer's business
may require. Executive shall be based in the metropolitan area of Xxx Xxxx
Xxxx (xxx "Xxx Xxxx Xxxx metropolitan area").
3. COMPENSATION AND BENEFITS. In consideration of Executive's services
hereunder, the Employer shall compensate Executive as provided in this Section
3.
(a) BASE SALARY. The Employer shall pay Executive an aggregate
annual salary at the rate of $_______ per annum during the Employment
Period ("Base Salary"), subject to applicable withholding. Base Salary
shall be payable in accordance with the Employer's normal business
practices, but in no event less frequently than monthly. Executive's Base
Salary shall be reviewed no less frequently than annually by the Employer
and may be increased, but not decreased, by the Employer during the
Employment Period.
(b) INCENTIVE COMPENSATION. In addition to the Base Salary payable
to Executive pursuant to Section 3(a), during the Employment Period,
Executive shall be eligible to participate in any incentive compensation
plans in effect with respect to senior executive officers of the Employer,
subject to Executive's compliance with such criteria as the Employer's
Board of Directors, in its sole discretion, may establish for Executive's
participation in such plans from time to time. Any awards to Executive
under such plans will be established by the Employer's Board of Directors,
or a committee thereof, in its sole discretion.
(c) STOCK OPTIONS. During the Employment Period, Executive shall be
eligible to participate in employee stock option plans established from
time to time for the benefit of senior executive officers and other
employees of the Employer in accordance with the terms and conditions of
such plans. All decisions regarding awards to Executive under the
Employer's stock option plans shall be made in the sole discretion of the
Employer's Board of Directors, or a committee thereof.
(d) EXPENSES. Executive shall be reimbursed for all reasonable
business related expenses incurred by Executive at the request of or on
behalf of the Employer, provided that such expenses are incurred and
accounted for in accordance with the policies and procedures established by
the Employer.
(e) MEDICAL INSURANCE. During the Employment Period, Executive and
Executive's immediate family shall be entitled to participate in such
medical benefit plan as the Employer shall maintain from time to time for
the benefit of senior executive officers of the Employer and their
families, on the terms and subject to the conditions set forth in such
plan. Nothing in this section shall limit the Employer's right to change,
modify or terminate any benefit plan or program as it sees fit from time to
time in the normal course of business.
(f) VACATIONS. Executive shall be entitled to reasonable paid
vacations in accordance with the then regular procedures of the Employer
governing senior executive officers.
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(g) OTHER BENEFITS. During the Employment Period, the Employer shall
provide to Executive such other benefits, including sick leave and the
right to participate in such retirement or pension plans, as are made
generally available to senior executive officers and employees of the
Employer from time to time.
4. INDEMNIFICATION AND LIABILITY INSURANCE. The Employer agrees to
indemnify Executive to the extent permitted by applicable law with respect to
any actions commenced against Executive in his capacity as an officer or
director, or former officer or director, of the Employer or any affiliate
thereof for which he may serve in such capacity. The Employer also agrees to
use its best efforts to secure and maintain officers and directors liability
insurance providing coverage for Executive.
5. EMPLOYER'S POLICIES. Executive agrees to observe and comply with the
rules and regulations of the Employer as adopted by its Board of Directors from
time to time regarding the performance of his duties and to carry out and
perform orders, directions and policies communicated to him from time to time by
the Employer's Board of Directors.
6. TERMINATION. The Executive's employment hereunder may be terminated
under the following circumstances:
(a) TERMINATION BY THE EMPLOYER.
(i) DEATH. The Executive's employment hereunder shall
terminate upon his death.
(ii) DISABILITY. If, in the reasonable good faith
determination of the Board of Directors, as a result of the
Executive's incapacity due to physical or mental illness or
disability, the Executive shall have been incapable of performing his
duties hereunder even with a reasonable accommodation on a full-time
basis for the entire period of three consecutive months or any 90 days
in a 180-day period, and within 30 days after written Notice of
Termination (as defined in Section 6(c)) is given he shall not have
returned to the performance of his duties hereunder on a full-time
basis, the Employer may terminate the Executive's employment
hereunder.
(iii) CAUSE. The Employer may terminate the Executive's
employment hereunder for Cause. For purposes of the Agreement,
"Cause" shall mean that the Board of Directors of the Employer
concludes, in good faith and after reasonable investigation, that: (i)
the Executive engaged in conduct which is a felony under the laws of
the United States or any state or political subdivision thereof; (ii)
the Executive engaged in conduct constituting breach of fiduciary
duty, gross negligence or willful misconduct relating to the Employer,
fraud or dishonesty or willful or material misrepresentation relating
to the business of the Employer; (iii) the Executive breached his
obligations or covenants under Section
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8 of this Agreement in any material respect; or (iv) the Executive
failed to substantially perform his duties hereunder more than 15 days
after receiving notice of such failure from the Employer, which notice
specifically identifies the manner in which he has failed so to
perform.
(iv) WITHOUT CAUSE. Executive's employment hereunder may be
terminated by the Employer at any time with or without Cause (as
defined in Section 6(a)(iii) above), by a majority vote of all of the
members of the Board of Directors of the Employer upon written notice
to Executive, subject only to the severance provisions specifically
set forth Section 7.
(b) TERMINATION BY THE EXECUTIVE.
(i) DISABILITY. The Executive may terminate his employment
hereunder for Disability within the meaning of Section 6(a)(ii) above.
(ii) WITH GOOD REASON. Executive's employment hereunder may
be terminated by Executive With Good Reason effective immediately by
written notice to the Board of Directors of the Employer. For
purposes of this Agreement, "With Good Reason" shall mean: (i) a
failure of the Board of Directors of the Employer to elect Executive
to offices with the same or substantially the same duties and
responsibilities as set forth in Section 2; (ii) a material failure by
the Employer to comply with the provisions of Section 3 or a material
breach by the Employer of any other provision of this Agreement which
has not been cured within thirty (30) days after notice of
noncompliance, (specifying the nature of the noncompliance) has been
given by the Executive to the Employer; or (iii) a Force Out (as such
term is defined in Section 6(d) below).
(c) NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Employer or by the Executive (other than termination
pursuant to subsection (a)(1) hereof) shall be communicated by written
Notice of Termination to the other party hereto in accordance with Section
11 of this Agreement. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and, as applicable,
shall set forth in reasonable detail the fact and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated.
(d) DEFINITIONS. The following terms shall be defined as set forth
below.
(i) A "Change-in-Control" shall be deemed to have occurred
after the effective date of the IPO if:
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(A) any Person, together with all "affiliates" and
"associates" (as such terms are defined in Rule 12b-2 under the
Securities Exchange Act of 1934 (the "Exchange Act")) of such
Person, shall become the "beneficial owner" (as such term is
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Employer representing 40% or
more of either (A) the combined voting power of the Employer's
then outstanding securities having the right to vote in an
election of the Employer's Board of Directors ("Voting
Securities") or (B) the then outstanding shares of all classes of
stock of the Employer (in either such case other than as a result
of the acquisition of securities directly from the Employer); or
(B) individuals who, as of the date of the closing of
the IPO, constitute the Employer's Board of Directors (the
"Incumbent Directors") cease for any reason, including, without
limitation, as a result of a tender offer, proxy contest, merger
or similar transaction, to constitute at least a majority of the
Employer's Board of Directors, provided that any person becoming
a director of the Employer subsequent to the closing of the IPO
whose election or nomination for election was approved by a vote
of at least a majority of the Incumbent Directors shall, for
purposes of this Agreement, be considered an Incumbent Director;
or
(C) the stockholders of the Employer shall approve (1)
any consolidation or merger of the Employer or any subsidiary
where the stockholders of the Employer, immediately prior to the
consolidation or merger, would not, immediately after the
consolidation or merger, beneficially own (as such term is
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, shares representing in the aggregate at least 50% of
the voting shares of the corporation issuing cash or securities
in the consolidation or merger (or of its ultimate parent
corporation, if any), (2) any sale, lease, exchange or other
transfer (in one transaction or a series of transactions
contemplated or arranged by any party as a single plan) of all or
substantially all of the assets of the Employer or (3) any plan
or proposal for the liquidation or dissolution of the Employer;
Notwithstanding the foregoing, a "Change-in-Control" shall not be deemed to
have occurred for purposes of the foregoing clause (A) solely as the result of
an acquisition of securities by the Employer which, by reducing the number of
shares of stock or other Voting Securities outstanding, increases (x) the
proportionate number of shares of stock of the Employer beneficially owned by
any Person to 40% or more of the shares of stock then outstanding or (y) the
proportionate voting power represented by the Voting Securities beneficially
owned by any Person to 40% or more of the combined voting power of all then
outstanding Voting Securities; PROVIDED, HOWEVER, that if any Person referred to
in clause (x) or (y) of this sentence shall
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thereafter become the beneficial owner of any additional stock of the Employer
or other Voting Securities (other than pursuant to a share split, stock
dividend, or similar transaction), then a "Change-in-Control" shall be deemed to
have occurred for purposes of the foregoing clause (A).
(ii) A "Force Out" shall be deemed to have occurred in the
event of a Change-In-Control followed by:
(A) a change in duties, responsibilities, status or
positions with the Employer, which, in Executive's reasonable
judgment, does not represent a promotion from or maintaining of
Executive's duties, responsibilities, status or positions as in
effect immediately prior to the Change-In-Control, or any removal
of Executive from or any failure to reappoint or reelect
Executive to such positions, except in connection with the
termination of Executive's employment for Cause, disability,
retirement or death;
(B) a reduction by the Employer in Executive's Base
Salary as in effect immediately prior to the Change-In-Control;
(C) the failure by the Employer to continue in effect
any of the benefit plans in which Executive is participating at
the time of the Change-In-Control of the Employer (unless
Executive is permitted to participate in any substitute benefit
plan with substantially the same terms and to the same extent and
with the same rights as Executive had with respect to the benefit
plan that is discontinued) other than as a result of the normal
expiration of any such benefit plan in accordance with its terms
as in effect at the time of the Change-In-Control, or the taking
of any action, or the failure to act, by the Employer which would
adversely affect Executive's continued participation in any of
such benefit plans on at least as favorable a basis to Executive
as was the case on the date of the Change-In-Control or which
would materially reduce Executive's benefits in the future under
any of such benefit plans or deprive Executive of any material
benefits enjoyed by Executive at the time of the
Change-In-Control; PROVIDED, HOWEVER, that any such action or
inaction on the part of the Employer, including any modification,
cancellation or termination of any benefits plan, undertaken in
order to maintain such plan in compliance with any federal, state
or local law or regulation governing benefits plans, including,
but not limited to, the Employment Retirement Income Security Act
of 1974, shall not constitute a Force Out for the purposes of
this Agreement.
(D) the Employer's requiring Executive to be based in
an office located beyond a reasonable commuting distance from
Executive's residence immediately prior to the Change-In-Control,
except for required
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travel relating to the Employer's business to an extent
substantially consistent with the business travel obligations
which Executive undertook on behalf of the Employer prior to the
Change-In-Control;
(E) the failure by the Employer to obtain from any
successor to the Employer an agreement to be bound by this
Agreement pursuant to Section 14 hereof; or
(iii) "Person" shall have the meaning used in Sections 13(d)
and 14(d) of the Exchange Act; provided however, that the term
"Person" shall not include (A) any current partner of XX Xxxxx
Operating Partnership, L.P., any stockholder or employee of the
Employer on the date hereof or any estate or member of the immediate
family of such a partner, stockholder or employee, or (B) the
Employer, any of its subsidiaries, or any trustee, fiduciary or other
person or entity holding securities under any employee benefit plan of
the Employer or any of its subsidiaries.
7. COMPENSATION UPON TERMINATION OR DURING DISABILITY.
(a) TERMINATION WITHOUT CAUSE OR WITH GOOD REASON. If (i) Executive
is terminated without Cause pursuant to Section 6(a)(iv) above, or (ii)
Executive shall terminate his employment hereunder with Good Reason
pursuant to Section (6)(b)(ii) above, then the Employment Period shall
terminate as of the effective date set forth in the written notice of such
termination (the "Termination Date") and Executive shall be entitled to the
following benefits:
(i) The Employer shall continue to pay Executive's Base
Salary for the remaining term of the Employment Period after the date
of Executive's termination, at the rate in effect on the date of his
termination and on the same periodic payment dates as payment would
have been made to Executive had the Employment Period not been
terminated;
(ii) For the remaining term of the Employment Period,
Executive shall continue to receive all benefits described in Section
3 existing on the date of termination, subject to the terms and
conditions upon which such benefits may be offered. For purposes of
the application of such benefits, Executive shall be treated as if he
had remained in the employ of the Employer with a Base Salary at the
rate in effect on the date of termination;
(iii) For purposes of any stock option plan of the Employer,
Executive shall be treated as if he had remained in the employ of the
Employer for the remaining term of the Employment Period after the
date of Executive's termination so that Executive may exercise any
exercisable options and Executive's other rights shall continue to
vest during the remaining term of the
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Employment Period with respect to any options previously granted under
such plans except as otherwise provided in such plan;
(iv) Nothing herein shall be deemed to obligate Executive to
seek other employment in the event of any such termination and any
amounts earned or benefits received from such other employment will
not serve to reduce in any way the amounts and benefits payable in
accordance herewith.
(b) TERMINATION FOR CAUSE OR WITHOUT GOOD REASON. If (i) Executive
is terminated for Cause pursuant to Section 6(a)(iii) above, or (ii)
Executive shall voluntarily terminate his employment hereunder without Good
Reason pursuant to Section 6(b)(iii) above, then the Employment Period
shall terminate as of the effective date set forth in the written notice of
such termination (the "Termination Date") and Executive shall be entitled
to receive only his Base Salary at the rate then in effect until the
Termination Date and any outstanding stock options held by Executive shall
expire in accordance with the terms of the stock option plan or option
agreement under which the stock options were granted.
(c) TERMINATION BY REASON OF DEATH. If Executive's employment
terminates due to his death, the Employer shall pay Executive's Base Salary
for a period of six months from the date of his death, or such longer
period as the Employer's Board of Directors may determine, to Executive's
estate or to a beneficiary designated by Executive in writing prior to his
death. Any unexercised or unvested stock options shall remain exercisable
or vest upon Executive's death only to the extent provided in the
applicable option plan and option agreements.
(d) TERMINATION BY REASON OF DISABILITY. In the event that
Executive's employment terminates due to his disability as defined in
Section 6(a)(ii) above, Executive shall be entitled to be paid his Base
Salary until the later of such time when (i) the period of disability or
illness (whether or not the same disability or illness) shall exceed 180
consecutive days during the Employment Period and (ii) Executive becomes
eligible to receive benefits under a comprehensive disability insurance
policy obtained by the Employer (the "Disability Period"). Following the
expiration of the Disability Period, the Employer may terminate this
Agreement upon written notice of such termination. Any unexercised or
unvested stock options shall remain exercisable or vest upon such
termination only to the extent provided in the applicable option plan and
option agreements.
(e) ARBITRATION IN THE EVENT OF A DISPUTE REGARDING THE NATURE OF
TERMINATION. In the event that the Executive's employment is terminated by
the Employer for Cause or by Executive for Good Reason, and either party
contends that such Cause or Good Reason did not exist, the parties agree to
submit such claim to arbitration before the American Arbitration
Association ("AAA"), and Executive hereby agrees to submit to any such
dispute to arbitration pursuant to the terms of this Section 7(e). In such
a
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proceeding, the only issue before the arbitrator will be whether
Executive's employment was in fact terminated for Cause or for Good Reason,
as the case may be. If the arbitrator determines that Executive's
employment was terminated by the Employer without Cause or was terminated
by Executive for Good Reason, the only remedy that the arbitrator may award
is an amount equal to the severance payments specified in Section 7, the
costs of arbitration, and Executive's attorneys' fees. If the arbitrator
finds that Executive's employment was terminated by the Employer for Cause
or by the Executive without Good Reason, the arbitrator will be without
authority to award Executive anything, and the parties will each be
responsible for their own attorneys' fees, and the costs of arbitration
will be paid 50% by Executive and 50% by the Employer.
8. CONFIDENTIALITY; PROHIBITED ACTIVITIES. The Executive and the
Employer recognize that due to the nature of his employment and relationship
with the Employer, the Executive has access to and develops confidential
business information, proprietary information, and trade secrets relating to the
business and operations of the Employer. The Executive acknowledges that such
information is valuable to the business of the Employer, and that disclosure to,
or use for the benefit of, any person or entity other than the Employer, would
cause irreparable damage to the Employer. The Executive further acknowledges
that his duties for the Employer include the duty to develop and maintain
client, customer, employee, and other business relationships on behalf of the
Employer; and that access to and development of those close business
relationships for the Employer render his services special, unique and
extraordinary. In recognition that the good will and business relationships
described herein are valuable to the Employer, and that loss of or damage to
those relationships would destroy or diminish the value of the Employer, the
Executive agrees as follows:
(a) CONFIDENTIALITY. During the term of this Agreement (including
any renewals), and at all times thereafter, the Executive shall maintain
the confidentiality of all confidential or proprietary information of the
Employer ("Confidential Information"), and, except in furtherance of the
business of the Employer, he shall not directly or indirectly disclose any
such information to any person or entity; nor shall he use Confidential
Information for any purpose except for the benefit of the Employer. For
purposes of the Agreement, "Confidential Information" includes, without
limitation: client or customer lists, identities, contacts, business and
financial information; investment strategies; pricing information or
policies, fees or commission arrangements of the Employer; marketing plans,
projections, presentations or strategies of the Employer; financial and
budget information of the Employer; new personnel acquisition plans; and
all other business related information which has not been publicly
disclosed by the Employer. This restriction shall apply regardless of
whether such Confidential Information is in written, graphic, recorded,
photographic, data or any machine readable form or is orally conveyed to,
or memorized by, the Executive. The Executive further agrees that, during
the Employment Period and at all times thereafter, he shall keep
confidential and shall not release, use or disclose without prior written
permission of the Employer, all Confidential Information developed by him
on behalf of the Employer or provided to him by the Employer, excepting
only such information as was already known
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to him prior to the commencement of his employment by the Employer or such
information as is already known to the public.
(b) PROHIBITED ACTIVITIES. Because Executive's services to the
Employer are essential and because Executive has access to the Employer's
Confidential Information, Executive covenants and agrees that (i) during
the Employment Period and (ii) in the event that this Agreement is
terminated by the Employer for Cause or by Executive other than for Good
Reason, during the Noncompetition Period, Executive will not, without the
prior written consent of the Board of Directors of the Employer which shall
include the unanimous consent of the Directors who are not officers of the
Employer, directly or indirectly (individually, or through or on behalf of
another entity as owner, partner, agent, employee, consultant, or in any
other capacity):
(i) engage, participate or assist, as an owner, partner,
employee, consultant, director, officer, trustee or agent, in any
business that engages or attempts to engage in, directly or
indirectly, the acquisition, development, construction, operation,
management or leasing of any office real estate property anywhere in
the New York City metropolitan area;
(ii) seek, solicit, or engage in any attempt to establish for
himself or for any other person or entity, a business relationship
with any person or entity who was a client or customer of the
Employer, or who was solicited to become a client or customer of the
Employer, during the Employment Period ("Employer Clients");
(iii) engage in any activity to interfere with, disrupt or
damage the business of the Employer, or its relationships with any
Employer Client, employee, supplier or other business relationship;
(iv) engage in business with, or provide advice or services
to, any Employer Client solicited by the Executive in breach of
Section 8 of this Agreement (whether or not such services are
compensated);
(v) receive, or cause any other person or entity to receive,
any compensation, consideration, or income, in any form, from any
Employer Client solicited by him in breach of Section 8 of this
Agreement; or
(vi) solicit, encourage, or engage in any activity to induce
any Employee of the Employer to terminate employment with the
Employer, or to become employed by, or to enter into a business
relationship with, any other person or entity. For purposes of this
subsection, the term Employee means any individual who is an employee
of or consultant to the Employer (or any affiliate) during the
six-month period prior to Executive's last day of employment.
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(c) NONCOMPETITION PERIOD. For purposes of this Section 8, the
Noncompetition Period shall mean the period commencing on the date of
termination of Executive's employment under this Agreement and ending on
the later of (i) the third anniversary of the IPO closing date or (ii) the
first anniversary of the date of termination of Executive's employment
under this Agreement.
(d) OPTION PROPERTY. Notwithstanding anything contained herein to
the contrary, Executive is not prohibited by this Section 8 from [(i)
maintaining his investment in any Option Property (as such term is defined
in the Employer's final prospectus relating to the IPO) or in any asset
listed in the Employer's final prospectus relating to the IPO under the
caption "The Properties - Assets Not Being Transferred to the Company" or]
(ii) from making investments in any entity that engages, directly or
indirectly, in the acquisition, development, construction, operation,
management or leasing of office real estate properties, regardless of where
they are located, if the shares or other ownership interests of such entity
are publicly traded and Executive's aggregate investment in such entity
constitutes less than one percent (1%) of the equity ownership of such
entity.
(e) EMPLOYER PROPERTY. The Executive acknowledges that all originals
and copies of materials, records and documents generated by him or coming
into his possession during his employment by the Employer are the sole
property of the Employer ("Employer Property"). During his employment, and
at all times thereafter, the Executive shall not remove, or cause to be
removed, from the premises of the Employer, copies of any record, file,
memorandum, document, computer related information or equipment, or any
other item relating to the business of the Employer, except in furtherance
of his duties under the Agreement. When the Executive terminates his
employment with the Employer, or upon request of the Employer at any time,
the Executive shall promptly deliver to the Employer all originals and
copies of Employer Property in his possession or control and shall not
retain any originals or copies in any form.
(f) NO DISPARAGEMENT. Following termination of the Executive's
employment for any reason, the Executive shall not disclose or cause to be
disclosed any negative, adverse or derogatory comments or information about
(i) the Employer and its parent, affiliates or subsidiaries, if any; (ii)
any product or service provided by the Employer and its parent, affiliates
or subsidiaries, if any; or (iii) the Employer's and its parent's,
affiliates' or subsidiaries' prospects for the future.
(g) REMEDIES. The Executive declares that the foregoing limitations
in Sections 8(a) through 8(f) above are reasonable and necessary for the
adequate protection of the business and the goodwill of the Employer. If
any restriction contained in this Section 8 shall be deemed to be invalid,
illegal or unenforceable by reason of the extent, duration or scope
thereof, or otherwise, then the court making such determination shall have
the right to reduce such extent, duration, scope, or other provisions
hereof to make
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the restriction consistent with applicable law, and in its reduced form
such restriction shall then be enforceable in the manner contemplated
hereby. In the event that the Executive breaches any of the promises
contained in this Section 8, the Executive acknowledges that the Employer's
remedy at law for damages will be inadequate and that the Employer will be
entitled to specific performance, a temporary restraining order or
preliminary injunction to prevent the Executive's prospective or continuing
breach and to maintain the status quo. The existence of this right to
injunctive relief, or other equitable relief, or the Employer's exercise of
any of these rights, shall not limit any other rights or remedies the
Employer may have in law or in equity including, without limitation, the
right to arbitration contained in Section 7(e) hereof and the right to
compensatory, punitive and monetary damages. In the event that a final
non-appealable judgment is entered in favor of one of the parties, that
party shall be reimbursed by the other party for all costs and attorneys'
fees incurred by such party in such action. Executive hereby agrees to
waive his right to a jury trial with respect to any action commenced to
enforce the terms of this Agreement.
(h) TRANSITION. Regardless of the reason for his departure from the
Employer, the Executive agrees that: (i) he shall assist the Employer in
maintaining the business of the clients and customers with whom the
Executive has a relationship; and (ii) he shall take all steps reasonably
requested by the Employer to effect a successful transition of those
relationships to the person or persons designated by the Employer.
(i) SURVIVAL. The provisions of this Section 8 shall survive
termination of the Executive's employment. The covenants contained in
Section 8 shall be construed as independent of any of other provisions
contained in this Agreement and shall be enforceable regardless of whether
the Executive has a claim against the Employer under the Agreement or
otherwise.
9. COOPERATION. The Executive agrees to give prompt written notice to
the Employer of any claim or injury relating to the Employer, and to fully
cooperate in good faith and to the best of his ability with the Employer in
connection with all pending, potential or future claims, investigations or
actions which directly or indirectly relate to any transaction, event or
activity about which the Executive may have knowledge because of his employment
with the Employer. Such cooperation shall include all assistance that the
Employer, its counsel, or its representatives may reasonably request, including
reviewing documents, meeting with counsel, providing factual information and
material, and appearing or testifying as a witness.
10. CONFLICTING AGREEMENTS. Executive hereby represents and warrants that
the execution of this Agreement and the performance of his obligations hereunder
will not breach or be in conflict with any other agreement to which he is a
party or is bound, and that he is not now subject to any covenants against
competition or similar covenants which would affect the performance of his
obligations hereunder.
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11. NOTICES. All notices or other communications required or permitted to
be given hereunder shall be in writing and shall be delivered by hand and or
sent by prepaid telex, cable or other electronic devices or sent, postage
prepaid, by registered or certified mail or telecopy or overnight courier
service and shall be deemed given when so delivered by hand, telexed, cabled or
telecopied, or if mailed, three days after mailing (one business day in the case
of express mail or overnight courier service), as follows:
(a) if to the Executive:
_____________________________
[Address]
[Address]
(b) if to the Employer:
XX Xxxxx Realty Corp.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or such other address as either party may from time to time specify by written
notice to the other party hereto.
12. AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement shall be effective unless it shall be in writing and signed by the
party against whom such amendment, modification or waiver is sought.
13. SEVERABILITY. If any provision of this Agreement (or any portion
thereof) or the application of any such provision (or any portion thereof) to
any person or circumstance shall be held invalid, illegal or unenforceable in
any respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision hereof (or the remaining
portion thereof) or the application of such provision to any other persons or
circumstances.
14. SUCCESSORS. Neither this Agreement nor any rights hereunder may be
assigned or hypothecated by the Executive. This Agreement may be assigned by
the Employer and shall be binding upon, and inure to the benefit of, the
Employer's successors and assigns.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to the other party.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be
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performed entirely within such State, without regard to the conflicts of law
principles of such State.
17. CHOICE OF VENUE. Executive agrees to submit to the jurisdiction of
the United States District Court for the Southern District of New York or the
Supreme Court of the State of New York, New York County, for the purpose of any
action to enforce any of the terms of this Agreement.
18. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter. The parties hereto shall not be liable or bound to any other
party in any manner by any representations, warranties or covenants relating to
such subject matter except as specifically set forth herein.
19. PARAGRAPH HEADINGS. Paragraph headings used in this Agreement are
included for convenience of reference only and will not affect the meaning of
any provision of this agreement.
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IN WITNESS WHEREOF, this Agreement is entered into as of the date and year
first above written.
XX XXXXX REALTY CORP.
By:________________________________
Name:
Title:
_______________________________
[Employee]
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