6/18/96
CONSULTING AGREEMENT
This Agreement is made by and between Xxxxx Equity, Inc., a Florida
corporation (the "Company"), and Xxxxx X. Xxxxx ("Consultant") of Jacksonville,
Florida, as of the 21st day of June 1996.
FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, TERMS,
PROVISIONS AND CONDITIONS CONTAINED IN THIS AGREEMENT, the parties
hereby agree:
1. Employment. The Company hereby offers and Consultant hereby accepts
employment as a consultant subject to the terms and conditions set forth in this
Agreement.
1.1. Term. Effective as of the date hereof, Consultant shall
cease to be an officer of the Company but shall continue as an employee of the
Company through December 31, 1996; commencing on June 21, 1996 and ending on
December 31, 1999 (the "Consulting Period"), the Company shall retain Consultant
to provide consulting services subject to the terms and conditions specified
below, and Consultant agrees to serve as a consultant to the Company.
1.2. Duties and Performance. During the Consulting Period,
Consultant shall serve as a consultant to the Company to provide advice and
assistance to the Company as may be requested from time to time by the Board of
Directors or its chief executive officer to whom he shall report, including at
the direction of the Company's chief executive officer (i) making national and
regional sales calls to key tenants and prospective tenants in support of the
Company's marketing department's plan, (ii) assisting the Company in market
research with respect to development of new markets and for new office products
and (iii) assisting the Company in its review and improvement of its operational
systems and such other assignments consistent with his experience as are
determined by the Company's chief executive officer. From June 21, 1996 through
December 31, 1996, Consultant shall continue as an employee of the Company and
shall consult to the Company on a full-time basis. Commencing January 1, 1997,
Consultant's services as an employee of the Company shall terminate, and he
shall become an independent consultant and shall devote not less than five days
per month to the Company through the remainder of the Consulting Period.
Consultant shall render such Consulting services during customary business hours
and at convenient times at the principal executive offices of the Company.
During his employment hereunder, Consultant shall devote his best efforts,
business judgment, skill and knowledge to the advancement of the Company's
interests and to the discharge of his duties and responsibilities hereunder.
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1.3. Compensation. During the Consulting Period, the Company
shall reimburse Consultant for all reasonable out-of-pocket business expenses
incurred by executive in performing such consulting services, including
telephone and telecopy and transportation, hotel and meal expenses if such
services are performed at other than the Company's principal office, subject to
such reasonable substantiation and documentation as may be specified by the
Company. During the Consulting Period, the Company shall pay Consultant, as
compensation for all services performed during the Consulting Period, at a rate
of $250,000 per annum until December 31, 1996, and thereafter at a rate of
$50,000 per annum, payable monthly and prorated for any partial period.
1.4. Benefits. Consultant shall be entitled until December 31,
1996 to participate in any and all employee benefit plans, medical insurance
plans, life insurance plans, disability income plans, retirement plans,
incentive compensation plans and other benefit plans from time to time in effect
for executives of the Company generally; thereafter, Consultant shall cease to
participate in such plans, except that effective as of January 1, 1997,
Consultant will commence receiving benefits under the Company's Supplemental
Executive Retirement Plan (the "SERP"), and he shall continue to be covered
under the Company's medical insurance coverage as specified in the SERP. Such
participation in employee benefit plans shall be subject to (i) the terms of the
applicable plan documents, (ii) generally applicable Company policies and (iii)
the discretion of the Board of Directors or any administrative or other
committee provided for in or contemplated by such plan.
2. Termination. Consultant's consulting shall terminate under the
following circumstances:
2.1. Death. In the event of Consultant's death during his
employment under this Agreement, Consultant's consulting hereunder shall
immediately and automatically terminate.
2.2. Disability.
(a) The Company may terminate Consultant's employment and
consulting hereunder, upon written notice to Consultant, in the event that
Consultant becomes disabled during the Consulting Period through any illness,
injury, accident or condition of either a physical or psychological nature and,
as a result, is unable to perform substantially all of his duties and
responsibilities hereunder for 90 days during any period of 365 consecutive
calendar days or for any consecutive 90-day period.
(b) In the event Consultant receives disability income
payments under the Company's disability income plan (as a result of disability
prior to December 31, 1996), Consultant shall not be entitled to receive any
compensation under Section 1.3.
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(c) If any question shall arise as to whether during any
period Consultant is disabled through any illness, injury, accident or condition
of either a physical or psychological nature so as to be unable to perform
substantially all of his duties and responsibilities hereunder, Consultant may,
and at the request of the Company shall, submit to a medical examination by a
physician selected by the Company to whom Consultant or his guardian has no
reasonable objection to determine whether Consultant is so disabled and such
determination shall for the purposes of this Agreement be conclusive of the
issue. If such question shall arise and Consultant shall fail to submit to such
medical examination, the Company's determination of the issue shall be binding
on Consultant .
2.3. Termination by the Company for Cause. The Company may
terminate Consultant's employment hereunder for Cause at any time upon written
notice setting forth in reasonable detail the nature of the Cause. The
following, as determined by the Board in its reasonable judgment, will
constitute Cause:
(a) Consultant's failure to perform his material duties and
responsibilities to the Company, notwithstanding reasonable notice and an
opportunity to cure on the part of Consultant, or Consultant's gross negligence
in the performance of his duties and responsibilities;
(b) fraud, embezzlement or other material dishonesty by
Consultant with respect to the Company; or
(c) Consultant's conviction of, or plea of nolo contendere to,
a felony or other crime involving moral turpitude.
Upon termination of Consultant's employment for Cause, the Company shall have no
further obligations under this Agreement other than to pay to Consultant any
amounts that have been earned but not paid.
2.4. Termination by Consultant . Consultant may terminate his
consulting arrangement hereunder upon 30 days' prior written notice to the
Company. In the event of termination by Consultant pursuant to this Section 2.4,
the Company shall have no further obligation to Consultant other than for
compensation earned to the date of termination.
3. Effect of Termination.
3.1. Payment by the Company of any compensation that may be
due Consultant under the applicable termination provision of Section 2 shall
constitute the entire obligation of the Company to Consultant under this
Agreement and performance by the Company shall constitute full settlement of any
claim that Consultant might otherwise assert against the Company under this
Agreement or any of those connected with it on account of such termination.
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3.2. Provisions of this Agreement shall survive any
termination if so provided herein or if necessary or desirable fully to
accomplish the purposes of such provisions, including, without limitation, the
obligations of Consultant under Section 4. Consultant recognizes that no
compensation is earned after termination of his consulting.
4. Nondisclosure; Restricted Activities.
4.1. During the Consulting Period and as a result of his prior
employment by the Company, Consultant may become aware of information which is
nonpublic, confidential or proprietary in nature with respect to the Company or
with respect to other companies, persons, entities, ventures or business
opportunities in which the Company has, or, if it were disclosed to the Company,
the Company might have, an interest ("Confidential Information"). All
Confidential Information will be kept strictly confidential by Consultant and
Consultant shall not: (a) copy, reproduce, distribute or disclose any
Confidential Information to any third party except in the course of his
employment by the Company; (b) use any Confidential Information for any purpose
other than in connection with his employment by the Company; or (c) use any
Confidential Information in any way that is detrimental to the Company.
Confidential Information shall not include information which Consultant can
demonstrate: (a) is or becomes generally available to the public other than by
breach by Consultant of his agreement herein; (b) is disclosed by Consultant,
pursuant to obligations under law, regulation or court order; or (c) was known
to Consultant on a nonconfidential basis. Upon termination of Consultant's
engagement, he shall immediately return or destroy all Confidential Information,
including all notes, copies, reproductions, summaries, analyses, or extracts
thereof, then in his possession. Such return or destruction shall not abrogate
the continuing obligations of Consultant under this Agreement. In the event that
Consultant is requested or required (by interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar
process) to disclose any Confidential Information, he shall provide the Company
with prompt written notice so that it may seek a protective order or other
appropriate remedy. In the event such protection or other remedy is not
obtained, Consultant shall furnish only that portion of the Confidential
Information which he is advised by counsel is legally required and shall
exercise best efforts to obtain assurance that confidential treatment will be
accorded to such Confidential Information.
4.2. Consultant agrees that until the expiration of five years
from the date of termination of his engagement by the Company, he will not
without the prior written approval of the Company (i) in any manner acquire,
agree to acquire or make any proposal to acquire, directly or indirectly, any
securities, assets or property of the Company or any of its subsidiaries,
whether such agreement or proposal is with Consultant or with a third party,
other than shares of common stock he is entitled to acquire under the terms of
stock options he holds at the date hereof, (ii) propose to enter into, directly
or indirectly, any merger or other business combination involving the
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Company or any of its subsidiaries, (iii) make, or in any way participate,
directly or indirectly, in any "solicitation" of "proxies" (as such terms are
used in the proxy rules of the Securities and Exchange Commission) to vote, or
seek to advise or influence any person with respect to the voting of, any voting
securities of the Company or any of its subsidiaries, (iv) form, join or in any
way participate in a "group" (within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934) with respect to any voting securities of the
other party or any of its subsidiaries, (v) otherwise act, alone or in concert
with others, to seek to control or, except in his capacity as a director of the
Company, influence the management, board of directors or policies of the
Company, (vi) disclose any intention, plan or arrangement inconsistent with the
foregoing or (vii) advise, encourage, provide assistance (including financial
assistance) to or hold discussions with any other persons in connection with any
of the foregoing.
4.3. Consultant hereby acknowledges that he is aware that the
United States securities laws prohibit any person who has material, nonpublic
information concerning the Company from purchasing or selling securities of the
Company or from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such person is likely
to purchase or sell such securities.
4.4. Consultant further agrees that during his consulting and
for a period of five years thereafter, he will not hire or attempt to hire any
individual who has been at the date hereof or during the Consulting Period
becomes an employee of the Company, assist in such hiring by any other person,
encourage any such employee to terminate his or her relationship with the
Company (unless such individual has voluntarily terminated his or her
employment, or the Company terminated such individual's employment without
cause, greater than one year prior to the first instance of Consultant's conduct
described in this Section), or solicit or encourage any tenant or other customer
of the Company to terminate its relationship with the Company or to conduct with
any person any business or activity which such customer conducts or could
conduct with Company.
4.5. The obligations of Consultant stated in this Section 4
shall, except where expressly limited as to time, continue without limit as to
time and without regard to the employment status of Consultant.
5. Relief, Interpretation; Expenses. Consultant agrees that the Company
shall, in addition to any other remedies available to it, be entitled to
preliminary and permanent injunctive relief against any breach by him of the
covenants contained in Section 4, without having to post bond. If any portion or
provision of this Agreement shall to any extent be declared illegal or
unenforceable by a court of competent jurisdiction, then the remainder of this
Agreement, or the application of such portion or provision in circumstances
other than those as to which it is so declared illegal or unenforceable, shall
not be affected thereby, and each portion and provision of this Agreement shall
be valid and enforceable to the fullest extent permitted by law. In the event
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that any provision of Section 4 shall be determined by any court of competent
jurisdiction to be unenforceable by reason of its being extended over too great
a time, too large a geographic area or too great a range of activities, it shall
be interpreted to extend only over the maximum period of time, geographic area
or range of activities as to which it may be enforceable. For purposes of
Section 4, the term "Company" shall mean the Company and any of its subsidiaries
and affiliates who are such during the term of Consultant's consulting for the
Company. Costs and expenses, including reasonable attorneys' fees, shall be paid
to the prevailing party in any action brought to enforce the provisions of this
Agreement by the other party hereto.
6. Conflicting Agreements. Consultant 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.
7. Withholding. All payments made by the Company under this Agreement
shall be reduced by any tax or other amounts required to be withheld by the
Company under applicable law.
8. Assignment. Neither the Company nor Consultant may make any
assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other party; provided,
however, that the Company may assign its rights and obligations under this
Agreement without the consent of Consultant to any affiliate thereof or in the
event that the Company shall hereafter effect a reorganization, consolidate
with, or merge into any other person or transfer all or substantially all of its
properties or assets to any other person, so long as the Company remains liable
for its obligations hereunder and the assignee assumes all obligations arising
under this Agreement. This Agreement shall inure to the benefit of and be
binding upon the Company and Consultant, their respective successors, executors,
administrators, heirs and permitted assigns.
9. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of either party to
require the performance of any term or obligation of this Agreement, or the
waiver by either party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
10. Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be in writing and shall be deemed to be
effectively given upon (i) confirmation of facsimile, (ii) when sent by
overnight delivery and (iii) mailed by registered or certified mail, return
receipt requested and postage prepaid at the following addresses,
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to the Company:
Xxxxx Equity, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Chairman
to Consultant:
Xxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Any party may change the address to which notices, requests, demands or other
communications hereunder are to be delivered by giving the other party notice in
the manner herein set forth.
11. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes any prior communications, agreements and
understandings, written or oral, with respect to the terms and conditions of
Consultant's employment.
12. Amendment. This Agreement may be amended or modified only by a
written instrument signed by Consultant and by a duly authorized representative
of the Company.
13. Governing Law. This contract shall be construed and enforced under
and be governed in all respects by the laws of the State of Florida, without
regard to the conflict of laws principles thereof.
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Company, by its duly authorized officer, and by Consultant, as
of the date first above written.
CONSULTANT: XXXXX EQUITY, INC.
______________________ By: ________________________
Xxxxx X. Xxxxx
Title: ______________________
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