EMPLOYMENT AGREEMENT
AGREEMENT made as of the 1st day of August, 2005, between X.X. Xxxx,
Inc., a New York corporation with offices and principal place of business
located at 0 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter called the
"Company"), and Xxxx X. Xxxx, Xx. (hereinafter called "Xxxx" or "Employee").
WHEREAS, Xxxx has rendered distinguished and dedicated service to the
Company for many years, currently serves as a Vice President and Assistant
Treasurer and his services have continuing value to the Company; and
WHEREAS, the Company desires to assure continuity of the services of
Xxxx as a Vice President and Assistant Treasurer by means of an Employment
Agreement and Xxxx is willing to enter into such Agreement upon the terms and
conditions hereinafter set forth; and
WHEREAS, the protection of the Company's Confidential Information (as
defined hereinafter) is vital to the continued successful operation of the
Company's business.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, it is agreed as follows:
1. Nature of Services and Duties:
(A) The Company hereby employs Xxxx and Xxxx accepts employment as a
Vice President and Assistant Treasurer of the Company.
(B) Xxxx shall devote his best efforts and substantially all of his
business time to advance the interests
of the Company, subject to the control of the Board of Directors, and subject to
and bound by all personnel and corporate policies and procedures applicable to
employees of the Company. At all times he shall be furnished office
accommodations adequate for the performance of his duties and compatible with
his position as a Vice President and Assistant Treasurer of the Company.
2. Term of Employment:
(A) Xxxx'x employment hereunder shall commence as of August 1, 2005
and shall end at the close of business on July 31, 2008, subject to earlier
termination as provided in this Agreement in the event of Xxxx'x retirement or
permanent disability (the "Term of Employment"). Leave of absence for any period
of time authorized by the Board of Directors of the Company shall not be deemed
an interruption, cessation or termination of the terms of Xxxx'x employment.
(B) Xxxx may, at his option, elect to retire at any time upon at
least ninety (90) days prior written notice to the Company.
(C) Nothing in this Agreement shall prevent the Company from
terminating the employment at any time for cause. The following events shall
constitute cause: (i) fraud, criminal conduct, misappropriation, embezzlement or
the like; or (ii) willful misconduct of the Employee in connection with the
performance of his duties under this Agreement; or (iii) violation of any
material provision of this Agreement.
3. Compensation:
(A) The Company agrees to compensate Xxxx for his
2
services, and Xxxx agrees to accept as compensation for his services, during the
period of his employment hereunder or any renewal thereof, the sum of not less
than One Hundred Forty-Six Thousand ($146,000.00) Dollars per annum, payable in
equal monthly or other installments in accordance with the general practice of
the Company with respect to Senior Executives. Xxxx shall be entitled to such
increases and additional payments as may be determined from time to time by the
Board of Directors in its discretion.
(B) To the extent to which he may qualify, he shall, in addition, be
entitled to participate in all plans now or hereafter adopted for Executives or
employees, including, but not limited to, pension, group insurance or medical
plans, and in any other employee benefit plans, whether similar to or different
from any of the foregoing categories, offered or made available by the Company.
(C) The Company shall reimburse Xxxx upon submission of vouchers by
him, for all out-of-pocket expenses for entertainment, travel, meals, hotel
accommodations and the like, incurred by him in the interest of the business of
the Company.
(D) The Company shall have the right, at its option, to allocate
payment of Xxxx'x compensation or expenses, or any part thereof, among its
subsidiaries or divisions, if any, to the extent applicable as its Board of
Directors may from time to time direct.
4. Restrictive Covenant:
(A) Xxxx acknowledges that: (i) due to the nature of
3
his duties, he has and will continue to have access to and will acquire
confidential information relating to the business and operation of the Company;
and (ii) Xxxx'x expertise and background would enable him to compete with the
business of the Company, which is the ownership, control, development,
management and operation of real property;
(B) Xxxx shall not at any time, either during or after his
employment, directly or indirectly, divulge, disclose or communicate to any
person or entity, any non-public information affecting or relating to the
business of the Company (the "Confidential Information"), including without
limitation the names and addresses of its tenants, sub-tenants and prospective
or potential tenants, marketing information, information regarding the nature
and extent of its ownership interests in real property, leasing information,
including, but not limited to, rents, expiration dates, rights of renewal, or
any other lease terms, costs and expenses of operation, income, its manner of
operation, its plans, its financial arrangements or condition, its policies and
procedures, or contracts and other relationships with and information regarding
other individuals or entities, including, but not limited to employees and
independent contractors, regardless of whether any or all of the foregoing
matters would be deemed confidential material or important, the parties
stipulating that as between them such information is confidential, important and
gravely affects the successful conduct of the business of the Company and its
goodwill and that any breach of this Section is a material breach of this
4
Agreement. Upon Xxxx'x termination of employment, he shall immediately deliver
to the Company all of the Company's Confidential Information and shall not
retain in any copies of the Company's Confidential Information without the
express prior written consent of the Company.
(C) In consideration of the amounts paid and payable pursuant to
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Xxxx hereby agrees as follows:
1. Except under and pursuant to this Agreement, or as otherwise
consented to in writing by the Company from time to time, during the Term of
Employment, Xxxx shall not at any time or place whatsoever, either directly or
indirectly, engage or be interested as owner, stockholder, partner, member
director, officer, employee, independent contractor or otherwise, (either with
or without compensation), in any person, business or entity which is directly or
indirectly in competition with the Company, or any of its subsidiaries. This
provision shall not be construed to prohibit investment by Xxxx in publicly
traded securities.
2. During the twenty-four (24) month period immediately
following the termination of Xxxx'x employment, without regard to the reason for
such termination, Xxxx shall not directly or indirectly, whether on Xxxx'x own
account or as an employee, partner, member, manager, officer or director of, or
consultant or independent contractor to, or holder of more than five (5%)
percent of the equity interest in any other entity,
5
within a fifteen (15) mile radius of the then principal place of business of the
Company, do any of the following:
(a) enter into or engage in any business which is competitive
with the Company's Business.
(b) induce any person employed by the Company, to join a
corporation, partnership, joint venture, limited liability company or other
entity in any such capacity, directly or indirectly, if such business is
competitive with that of the Company or if such business, or its successors or
assigns, competes with the Company or if such business, or its successors or
assigns, solicits tenants of the Company.
(c) employ, directly or indirectly, any of the Company's
Confidential Information in whole or in any material part.
(D) For the purposes of this Agreement, a business will be deemed
competitive with the Company's Business if it engages in any manner in the
ownership, control, development, management and/or operation of real property.
(E) Xxxx hereby agrees that, in the event of his breach of any of
the covenants set forth in this Section 4, the Company shall be entitled to
obtain appropriate equitable relief, including, without limitation, a permanent
injunction or similar court order enjoining Xxxx from violating any of such
provisions, and that pending the hearing and the decision on the application for
permanent equitable relief, the Company shall be entitled to a temporary
restraining order and a preliminary injunction, all at Xxxx'x expense, including
reasonable attorney's fees and
6
disbursements, provided, however, no such remedy shall be construed to be the
exclusive remedy of the Company and any and all such remedies shall be held and
construed to be cumulative and not exclusive of any rights or remedies, whether
at law or in equity, otherwise available under the terms of this Agreement, at
common law, or under federal, state or local statutes, rules and regulations.
(F) Each provision contained in this Section 4 is intended to be
independent of the others, and shall survive and shall remain binding and
enforceable, notwithstanding that any of the other provisions may be declared
invalid, void or unenforceable and, in the case of the geographical and time
limitations, may be modified in geographical scope or duration by any court of
competent jurisdiction to the extent necessary to make such provision valid and
enforceable.
(G) The provisions of this Section 4 shall survive the termination
of Xxxx'x employment.
(H) If any present or future statute of the State of New York
provides protections or remedies relating to Confidential Information, which are
greater than the protections and remedies provided by this Agreement, then the
Company shall also have the benefit of such additional statutory protections and
remedies.
(I) The provisions of this Section 4 shall not apply to work of any
kind performed by the Employee for any entity which is affiliated or related to
the Company, including, but not limited to Xxxxxxxxx Enterprises, Inc.
5. Disability:
7
(A) If Xxxx becomes permanently disabled (as defined herein) during
the period of his employment, the Company may terminate his employment on not
less than three (3) months' prior notice, but the Company shall nevertheless pay
Xxxx his compensation, as then in effect, for the balance of his Term of
Employment.
(B) Xxxx shall be deemed permanently disabled if either (i) he and
the Company so agree, or (ii) after a period of ninety (90) days during which
Xxxx is continuously unable, as a result of any physical or mental ailment, to
perform his major duties and responsibilities as provided in Section 1, he is,
either at his (or on his behalf) or the Company's request, examined by New York
University Medical Center, New York, New York, or any successor organization, or
by any other Hospital in the City of New York of comparable stature, mutually
agreed upon (hereinafter called the "Hospital"), and the Hospital certifies
that, in the opinion of its Medical Examiners, Xxxx'x health is such that, for a
period of ninety (90) days or more from that date, Xxxx is and probably will be
incapacitated, physically or mentally, from performing, or that it would
seriously impair his health to perform, his major duties and responsibilities as
provided in Section 1 hereof. If, for any reason, the Hospital cannot or refuses
to pass on such question, such certificate may be obtained from a majority of a
Board of three (3) licensed physicians, members of the American Medical
Association (New York City Division), one (1) to be chosen by Xxxx or on his
behalf, one (1) by the Company, and the third (3rd) by the other two (2),
8
if they can agree thereon, otherwise by the then President of the New York State
Medical Association. The certificate of two (2) of the said physicians shall be
final and binding upon both parties hereto.
6. Assignability of This Agreement:
This Agreement is personal and shall not be assignable by Xxxx and
its terms, covenants and conditions shall be binding upon and inure to the
benefit of the Company, or its successors and assigns.
7. Interpretation of This Agreement:
This Agreement shall be construed and enforced in accordance with,
and governed by, the laws of the State of New York, applicable to agreements
made and to be performed in New York. This Agreement supersedes all prior
Agreements and understandings relating to the subject matter hereof, and this
Agreement may not be modified or amended or any term or provision thereof waived
or discharged except in writing signed by the party against whom such amendment,
modification, waiver or discharge is sought to be enforced. No waiver of any
provision of this Agreement shall be valid unless in writing and signed by the
person or party to be charged.
The headings of this Agreement are for purpose of reference only and
shall not limit or otherwise affect the meaning thereof.
Whenever the singular is used in this Agreement and when required by
the context, the same shall include the plural.
This Agreement may be executed in one or more
9
counterparts each of which shall be deemed an original.
8. Notices:
Any notices that may, at any time, be required to be given hereunder
shall mean written notice and be addressed by Registered or Certified Mail as
follows, unless a different address be furnished by Registered or Certified Mail
to the other party:
If to the Company: at 0 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
If to Xxxx: at 00 Xxxxxxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by its President, attested by its Secretary and its corporate seal affixed
hereunto, and Xxxx has affixed his hand and seal as of the date first above
written.
X.X. Xxxx, Inc.
By:
-------------------------------
Xxxxx X. Xxxxxxx, President
(SEAL)
ATTEST:
------------------------------
Xxxxxxxxx Xxxxxxxx, Secretary
-----------------------------
Xxxx X. Xxxx, Xx.
10
STATE OF NEW YORK )
)ss.:
COUNTY OF )
On this day of , 2005, before me, the individual,
personally appeared Xxxxx X. Xxxxxxx, personally known to me or proved to me
on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individual, or the person on behalf of which the individual acted, executed
the instrument
-----------------------------
Notary Public
STATE OF NEW YORK )
)ss.:
COUNTY OF )
On this day of , 2005, before me, the individual,
personally appeared Xxxx X. Xxxx, Xx., personally known to me or proved to me
on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individual, or the person on behalf of which the individual acted, executed
the instrument
-----------------------------
Notary Public
11
