Exhibit 10.3
AMENDED AND RESTATED
EMPLOYMENT AND NONCOMPETITION AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AND NONCOMPETITION AGREEMENT
("Agreement") is made as of the ____ day of ________, 1998 ("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"), and amends
and completely restates the Employment and Noncompetition Agreement made as of
the day of , 1997.
1. TERM. The term of this Agreement shall commence on the day of , 1998
and, unless earlier terminated as provided herein, shall terminate on the third
anniversary of such date (the "Current Term"); PROVIDED, HOWEVER, that Section 8
hereof shall survive the termination of this Agreement as provided therein. The
Current Term shall automatically be extended for successive one-year periods
(each a "Renewal Term"), unless either party shall notify the other in writing
at least six (6) months prior to the expiration of the Current Term or the
applicable Renewal Term of its intention not to renew such Term. The period of
Executive's employment hereunder consisting of the Current 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 Executive Vice President and General
Counsel 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 an officer of any subsidiary of the
Company, 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 New York City.
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 $ ($ , effective , 1999) 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.
(g) OTHER BENEFITS. During the Employment Period, the Employer
shall provide to Executive such other benefits, including sick
leave and the right to
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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, subject to the severance
provisions specifically set forth in Section 7(b) and the
arbitration provisions specifically set forth in Section 7(e).
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:
(A) the Executive engaged in conduct which is a
felony under the laws of the United States or any state
or political subdivision thereof;
(B) 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;
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(C) the Executive breached his obligations or
covenants under Section 8 of this Agreement in any
material respect; or
(D) the Executive failed to perform his duties
hereunder in a manner and at a level reasonably
satisfactory to the Employer more than 15 days after
receiving notice 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 in Section 7(a)
herein.
(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).
Notwithstanding any provision of this Agreement to the
contrary, with "Good Reason" shall not include any assignment
of Executive to a position or office that has new or different
duties, provided that such position or office is principally
related to the provision of legal services, has a
substantially similar level of responsibility to Executive's
immediately preceding position or office and is commensurate
with Executive's education, skills and experience.
(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.
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(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 initial public
offering of the Employer's Common Stock ("IPO") if:
(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
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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 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). In
addition, notwithstanding the foregoing, a "Change-in-Control"
shall not be deemed to have occurred for purposes of the
foregoing clause (A) if (i) Xxxxxxx X. Xxxxx continues to
serve as Chief Executive Officer or the equivalent of any
surviving entity, and (ii) the proportionate number of shares
of stock of the Employer beneficially owned, or the
proportionate voting power represented by the Voting
Securities beneficially owned, by any Person described in such
clause (A) does not exceed 49%.
(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
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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 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; or
(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.
(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, or, if such termination
occurs in connection with or after a Change-in-Control, for
three years, whichever period is longer, 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,
or, if such termination occurs in connection with or after a
Change-in-Control, for three years, whichever period is
longer, Executive shall continue to receive all benefits
described in Section 3 existing on the date of termination,
including, but not limited to, any bonuses and incentive
compensation described in Section 3 of this
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Agreement, 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, (x) 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,
or for one year, whichever period is longer, so that Executive
may exercise any exercisable options and Executive's other
rights shall continue to vest during the remaining term of the
Employment Period with respect to any options previously
granted under such plans, except as otherwise provided in such
plans, and (y) if such termination occurs in connection with
or after a Change-in-Control, any stock options and any other
rights of Executive (including restricted stock awards) shall
become fully vested and immediately exercisable upon such
termination;
(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; and
(v) If in the opinion of tax counsel selected by the
Executive and reasonably acceptable to the Employer, the
Executive has or will receive any compensation or recognize
any income (whether or not pursuant to this Agreement or any
plan or other arrangement of the Employer and whether or not
the Employment Period or the Executive's employment with the
Employer has terminated) which will constitute an "excess
parachute payment" within the meaning of Section 280G(b)(1) of
the Internal Revenue Code (the "Code") (or for which a tax is
otherwise payable under Section 4999 of the Code or any
successor provision thereto), then the Employer shall pay the
Executive an additional amount (the "Additional Amount") equal
to the sum of (i) all taxes payable by the Executive under
Section 4999 of the Code with respect to all such excess
parachute payments and any such Additional Amount, plus (ii)
all federal, state and local income taxes payable by Executive
with respect to any such Additional Amount. Any amounts
payable pursuant to this paragraph (v) shall be paid by the
Employer to the Executive within 30 days of each written
request therefor made by the Executive.
(b) TERMINATION FOR CAUSE OR WITHOUT GOOD REASON. If Executive
is terminated for Cause pursuant to Section 6(a)(iii) above,
or if Executive voluntarily terminates his employment
hereunder without 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 any outstanding stock
options held by Executive shall expire in accordance with the
terms of the stock option plan or option agreement under
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which the stock options were granted. Executive shall be
entitled to receive the following benefits:
(i) If (A) Executive is terminated for Cause pursuant
to Section 6(a)(iii)(A), (B) or (C) above (regardless of
whether he submits a claim of lack of Cause to arbitration
pursuant to Section 7(e) herein), (B) Executive is terminated
for Cause pursuant to Section 6(a)(iii)(D) above and does not
submit a claim of lack of Cause to arbitration pursuant to
Section 7(e) herein, or (C) Executive voluntarily terminates
his employment hereunder without Good Reason pursuant to
Section 6(b)(ii) above, then Executive shall be entitled to
receive only his Base Salary at the rate then in effect until
the Termination Date.
(ii) If Executive is terminated for Cause pursuant to
Section 6(a)(iii)(D) above and submits a claim of lack of
Cause to arbitration pursuant to Section 7(e) herein, then,
subject to Executive's repayment obligation under Section
7(e)(ii)(B):
(A) Executive shall be entitled to receive
his Base Salary at the rate then in effect until the
earlier of either the date six months after the
Termination Date or the date of the arbitrator's
final determination.
(B) The Employer shall, upon Executive's
submission of appropriate invoices, promptly pay up
to the first $25,000 of such Executive's costs of
arbitration and attorney's fees until the earlier of
either the date of the arbitrator's final
determination or the date on which the Executive's
costs of arbitration and attorney's fees equal or
exceed $25,000.
(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.
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(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 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.
(i) AWARDS IN FAVOR OF THE EXECUTIVE. 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(a), the costs of arbitration, and
Executive's attorneys' fees. In cases where an award is
granted to an Executive who was terminated for Cause pursuant
to Section 6(a)(iii)(D) above, such arbitration award shall be
reduced by the amount of Base Salary, costs of arbitration and
attorney's fees already paid by the Employer pursuant to
Section 7(b)(ii) above.
(ii) AWARDS IN FAVOR OF THE EMPLOYER.
(A) If the arbitrator finds that Executive's
employment was terminated by the Employer for Cause
pursuant to Section 6(a)(iii)(A), (B), (C) or (D)
above, or by the Executive without Good Reason, the
arbitrator will be without authority to award
Executive anything, 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.
(B) In addition, if the arbitrator finds
that the Executive's employment was terminated for
Cause pursuant to Section 6(a)(iii)(D) above,
Executive must promptly reimburse the Employer for
the full amount of any Base Salary paid by the
Employer with respect to periods after the
Termination Date, the full amount of any attorney's
fees paid by the Employer, and 50% any costs of
arbitration paid by the Employer on behalf of the
Executive pursuant to Section 7(b)(ii) above.
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
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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 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, (ii) in the
event that this Agreement is terminated by the Employer for
Cause or by the Executive other than for Good Reason, during
the one-year period following the date of such termination,
and (iii) solely for purposes of paragraph (vi) below, during
the five-year period following the date on which Executive's
employment terminates for any reason, 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,
directly or indirectly, in any material acquisition,
development, construction, operation, management or leasing of
any commercial real estate property:
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(A) anywhere in the five boroughs of New
York City, regardless of whether such business is
publicly or privately held;
(B) anywhere in the New York City
metropolitan area, if such business or any of its
affiliates (within the meaning of the Securities Act
of 1933) has issued any class of publicly-traded
securities;
(C) anywhere in the New York City
metropolitan area, regardless of whether such
business is publicly or privately held, if such
business engages in the commercial real estate
business in any county in which the Employer also
engages in the commercial real estate business.
For purposes of this subsection, the New York City
metropolitan area includes each borough of New York City;
Nassau, Orange, Xxxxxx, Rockland, Suffolk and Westchester
Counties in the State of New York; Bergen, Essex, Hudson,
Hunterdon, Xxxxxx, Middlesex, Monmouth, Xxxxxx, Passaic,
Somerset, Sussex, Union and Xxxxxx Counties in the State of
New Jersey; and Fairfield County in the State of Connecticut);
(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.
Notwithstanding any of the foregoing, Executive shall
not be prohibited from engaging in the practice of law with,
for or on behalf of any person or entity as a partner, agent,
employee, consultant, or in any other capacity.
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(c) OPTION PROPERTY. Notwithstanding anything contained herein
to the contrary, Executive is not prohibited by this Section 8
from (i) maintaining his or her 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.
(d) 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.
(e) 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.
(f) 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 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
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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.
(g) 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.
(h) 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.
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:
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00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(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 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.
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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.
IN WITNESS WHEREOF, this Agreement is entered into as of the date and
year first above written.
XX XXXXX REALTY CORP.
By:________________________________
Name:
Title:
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