EXECUTIVE EMPLOYMENT AGREEMENT BETWEEN EDUCATION REALTY TRUST, INC. AND RANDALL L. CHURCHEY EFFECTIVE AS OF JANUARY 1, 2010
BETWEEN
AND
XXXXXXX
X. XXXXXXXX
EFFECTIVE
AS OF
JANUARY
1, 2010
THIS EXECUTIVE EMPLOYMENT
AGREEMENT (the “Agreement”) by and
between Education Realty Trust, Inc., a Maryland corporation (the “Company”), and
Xxxxxxx X. Xxxxxxxx (“Executive” and,
together with the Company, the “Parties”) is
effective as of January 1, 2010 (the “Effective
Date”).
WHEREAS, the Company desires
to employ Executive as President and Chief Executive Officer and Executive
desires to accept said employment by the Company;
WHEREAS, Executive’s position
is a position of trust and responsibility with access to Trade Secrets (defined
below), Confidential Information (defined below) and information concerning
Employees (defined below) and Customers (defined below) of the
Company;
WHEREAS, Trade Secrets,
Confidential Information and the relationships between the Company and each of
its Employees and Customers are valuable assets of the Company and may not be
used for any purpose other than the Company’s Business (defined
below);
WHEREAS, Executive
acknowledges that if Executive were to perform services for a competitor during
the Restricted Period (defined below), it would be inevitable that Executive
would disclose the Company’s Trade Secrets and Confidential
Information;
WHEREAS, the Company has
agreed to employ Executive in exchange for Executive’s compliance with the terms
of this Agreement;
WHEREAS, the Company and the
Executive desire to express the terms and conditions of Executive’s employment
in this Agreement;
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Definitions. For
purposes of this Agreement, all initially capitalized words and phrases used in
this Agreement have the following meanings:
“Affiliate” shall
mean, with respect to any individual or entity, any other individual or entity
who, directly or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with such individual or
entity.
“Agreement” shall have
the meaning set forth in the introductory paragraph above.
“Application” shall
have the meaning set forth in Section
9.
“Base Salary” shall
have the meaning set forth in Section
4(a).
“Board” shall mean the
Board of Directors of the Company.
“Bonus” shall have the
meaning set forth in Section
4(b).
“Business” shall mean
the business of developing, owning and managing student housing communities,
providing third-party management services for student housing communities and
providing third-party development consulting services for student housing
communities.
“Cause” shall mean
that Executive has (a) continually failed to substantially perform, or been
grossly negligent in the discharge of, his duties to the Company (in any case,
other than by reason of a Disability, physical or mental illness or analogous
condition); (b) been convicted of or pled nolo contendere to a felony
or a misdemeanor with respect to which fraud or dishonesty is a material
element; or (c) materially breached any material Company policy or agreement
with the Company.
“Change of Control”
shall mean the first of the following events to occur after the Effective
Date:
(a) any
Person or group of Persons together with its Affiliates, but excluding (i) the
Company or any of its Subsidiaries, (ii) any employee benefit plans of the
Company or (iii) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company, is or becomes, directly or indirectly, the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of
securities of the Company representing fifty percent (50%) or more of the
combined voting power of the Company’s then outstanding securities (not
including in the securities beneficially owned by such Person any securities
acquired directly from the Company);
(b) the
following individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who, on the Effective Date,
constitute the Board and any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation, relating to the
election of directors of the Company) whose appointment or election by the Board
or nomination for election by the Company’s stockholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors on the Effective Date or whose appointment,
election or nomination for election was previously so approved or
recommended;
(c) the
consummation of a merger or consolidation of the Company or any direct or
indirect Subsidiary of the Company with any other corporation or entity
regardless of which entity is the survivor, other than a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or being converted into voting securities of the surviving entity)
more than fifty percent (50%) of the combined voting power of the voting
securities of the Company, such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation;
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(d) the
stockholders of the Company approve a plan of complete liquidation or winding-up
of the Company or there is consummated an agreement for the sale or disposition
by the Company of all or substantially all of the Company’s assets;
or
(e) the
occurrence of any transaction or series of transactions deemed by the Board to
constitute a change in control of the Company.
Notwithstanding
the foregoing, (i) a “Change of Control” shall not be deemed to have occurred by
virtue of the consummation of any transaction or series of integrated
transactions immediately following which the holders of the common stock of the
Company immediately prior to such transaction or series of transactions continue
to have substantially the same proportionate ownership in an entity which owns
all or substantially all of the assets of the Company immediately following such
transaction or series of transactions, and (ii) a “Change of Control” shall not
occur for purposes of this Agreement as a result of any primary or secondary
offering of Company common stock to the general public through a registration
statement filed with the Securities and Exchange Commission.
“Code” means the
Internal Revenue Code of 1986, as amended.
“Committee” shall have
the meaning set forth in Section
4(a).
“Company” shall have
the meaning set forth in the introductory paragraph above.
“Confidential
Information” means (a) information of the Company or any Subsidiary
thereof, to the extent not considered a Trade Secret under applicable law, that
(i) relates to the Business of the Company or any Subsidiary thereof; (ii)
possesses an element of value to the Company or any Subsidiary thereof; (iii) is
not generally known to the Company’s competitors; and (iv) would damage the
Company, or any Subsidiary thereof, if disclosed, and (b) information of any
third party provided to the Company which the Company is obligated to treat as
confidential. Confidential Information includes, but is not limited to, future
business plans, the composition, description, schematic or design of products,
future products or equipment of the Company or any Subsidiary thereof,
communication systems, audio systems, system designs and related documentation,
advertising or marketing plans, information regarding independent contractors,
Employees, clients and Customers of the Company or any Subsidiary thereof, and
information concerning the Company’s financial structure and methods and
procedures of operation. Confidential Information shall not include
any information that is or becomes generally available to the public other than
as a result of an unauthorized disclosure, has been independently developed and
disclosed by others without violating this Agreement or the legal rights of any
party or otherwise enters the public domain through lawful means.
“Contact” means any
interaction between Executive and a Customer which (a) takes place in an effort
to establish, maintain and/or further a business relationship on behalf of the
Company, or any Subsidiary thereof, and (b) occurs during the last year of
Executive’s employment with the Company (or during Executive’s employment if
employed less than one (1) year).
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“Customer” means any
person or entity to whom the Company, or any Subsidiary thereof, has sold or has
solicited to sell its products or services.
“Defense Costs” has
the meaning set forth in Section
13.
“Disability” means a
physical or mental condition entitling the Executive to benefits under the
applicable long-term disability plan of the Company or any its Subsidiaries, or
if no such plan exists, a “permanent and total disability” (within the meaning
of Section 22(e)(3) of the Code) or as determined by the Company in accordance
with applicable laws.
“Duties” means, solely
for purposes of Section 8 of this
Agreement, managing the day-to-day operations of the Company (or any Subsidiary
thereof), which include, but are not limited to, the usual and customary duties
of a President and Chief Executive Officer of a public corporation.
“Effective Date” shall
have the meaning set forth in the introductory paragraph above.
“Employee” means any
person who (a) is employed by the Company, or any Subsidiary thereof, at the
time Executive’s employment with the Company terminates; (b) was employed by the
Company, or any Subsidiary thereof, during the last year of Executive’s
employment with the Company (or during Executive’s employment if employed less
than one (1) year); or (c) is employed by the Company, or any Subsidiary
thereof, during the Restricted Period.
“Employment Period”
shall have the meaning set forth in Section
3.
“Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Executive” shall have
the meaning set forth in the introductory paragraph above.
“Good Reason” means
(a) an adverse diminution in Executive’s title, duties or responsibilities
(provided, however, that a requirement to utilize skills in addition to those
utilized in Executive’s current position, and/or a change in title and/or direct
reports to reflect the organizational structure of the successor entity
following a Change of Control, shall not in and of itself be considered an
“adverse diminution” as contemplated by this subsection (a)); (b) a reduction of
ten percent (10%) or more in Executive’s annual Base Salary; (c) a reduction of
ten percent (10%) or more in Executive’s annual target bonus opportunity
(including the failure to pay any bonus earned for any year in which a Change of
Control occurs pursuant to the terms of any applicable plan or arrangement in
effect prior to such Change of Control); or (d) the relocation of Executive’s
principal place of employment to a location more than fifty (50) miles from
Executive’s principal place of employment, except for required travel on the
Company’s business to an extent substantially consistent with Executive’s
historical business travel obligations. Executive’s continued
employment shall not constitute consent to, or a waiver of rights with respect
to, any act or failure to act constituting Good Reason hereunder, provided that
Executive provides the Company with a written notice of resignation within
ninety (90) days following the occurrence of the event constituting Good Reason
and the Company shall have failed to remedy such act or omission within thirty
(30) days following its receipt of such notice.
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“Incentive Plan” means
the Company’s 2004 Incentive Plan, as amended from time to time.
“Inducement Award”
shall have the meaning set forth in Section 4(c)
below.
“Licensed Materials”
means any materials that Executive utilizes for the benefit of the Company (or
any Subsidiary thereof), or delivers to the Company or the Company’s Customers,
which (a) do not constitute Work Product, (b) are created by Executive or of
which Executive is otherwise in lawful possession and (c) Executive may lawfully
utilize for the benefit of, or distribute to, the Company or the Company’s
Customers.
“Minimum First Year
Bonus” shall have the meaning set forth in Section
4(b).
“Parties” shall have
the meaning set forth in the introductory paragraph above.
“Person” shall mean a
“person” as defined in Section 3(a)(9) of the Exchange Act, as modified and used
in Sections 13(d) and 14(d) thereof, except that such term shall not include (a)
the Company (or any Subsidiary thereof), (b) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company, (c) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (d) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
“Restricted Period”
means the period of time encompassing Executive’s employment with the Company
and three (3) years after termination of Executive’s employment with the
Company.
“Separation
Conditions” shall have the meaning set forth in Section
6(e).
“Subsidiary” means a
corporation, partnership or other entity of which a majority of the voting
interests of such corporation, partnership or other entity are at the time owned
directly or indirectly through one or more intermediaries or Subsidiaries, or
both, by the Company.
“Territory” means the
continental United States.
“Trade Secrets” means
information of the Company (or any Subsidiary thereof), and its licensors,
suppliers, clients and Customers, without regard to form, including, but not
limited to, technical or non-technical data, a formula, a pattern, a
compilation, a program, a device, a method, a technique, a drawing, a process,
financial data, financial plans, product plans or a list of actual or potential
Customers or suppliers which is not commonly known by or available to the public
and which information (a) derives economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by proper means
by, other persons who can obtain economic value from its disclosure or use and
(b) is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.
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“Work Product” means
(a) any data, databases, materials, documentation, computer programs, inventions
(whether or not patentable), designs and/or works of authorship, including but
not limited to, discoveries, ideas, concepts, properties, formulas,
compositions, methods, programs, procedures, systems, techniques, products,
improvements, innovations, writings, pictures, audio, video, images of Executive
and artistic works, and (b) any subject matter protected under patent,
copyright, proprietary database, trademark, trade secret, rights of publicity,
confidential information or other property rights, including all worldwide
rights therein, that is or was conceived, created or developed in whole or in
part by Executive while employed by the Company and that either (i) is created
within the scope of Executive’s employment; (ii) is based on, results from or is
suggested by any work performed within the scope of Executive’s employment and
is directly or indirectly related to the Business of the Company or a line of
business that the Company may reasonably be interested in pursuing;
(iii) has been or will be paid for by the Company; or (iv) was created or
improved in whole or in part by using the Company’s time, resources, data,
facilities or equipment.
2. Employment and
Duties.
(a) The
Company shall employ Executive as President and Chief Executive
Officer. Executive shall perform all duties that are consistent with
Executive’s position and that may otherwise be assigned to Executive by the
Company from time to time. Executive shall report directly to the
Board of the Company.
(b) Executive
agrees to (i) devote all necessary working time required of Executive’s
position; (ii) devote Executive’s best efforts, skill and energies to promote
and advance the Business and/or interests of the Company and its Subsidiaries;
and (iii) fully perform Executive’s obligations under this
Agreement.
(c) During
Executive’s employment, Executive shall not render services to any other entity,
regardless of whether Executive receives compensation, without the prior written
consent of the Company. Executive may, however, (i) engage in
community, charitable and educational activities; (ii) manage Executive’s
personal investments; (iii) continue to serve on the board of trustees of Great
Wolf Resorts, Inc. and as co-chairman of the board of MCR Development, provided,
however, that such work does not compete with the Company and does not involve
student housing whatsoever, and (iv) with the prior written consent of the Board
(or a designated committee thereof), serve on other corporate boards or
committees, provided that such activities do not conflict or interfere with the
performance of Executive’s obligations under this Agreement or conflict with the
interests of the Company.
(d) Executive
agrees to comply with the policies and procedures of the Company as may be
adopted and changed from time to time, including those described in the
Company’s employee handbook, Code of Business Conduct and Ethics and other
policies set forth by the Company from time to time. If this Agreement conflicts
with such policies or procedures, this Agreement will control.
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(e) As
an officer of the Company, Executive owes a duty of care and loyalty to the
Company as well as a duty to perform such duties in a manner that is in the best
interests of the Company.
3. Term. Subject to the
provisions of Section
5, the term of Executive’s employment under this Agreement will commence
upon the Effective Date and shall continue in effect through the third
anniversary of the Effective Date (the “Employment Period”);
provided, however, that, subject to the provisions of Section 5, commencing
on the day following the Effective Date and on each day thereafter, the
Employment Period shall be automatically extended for one (1) additional day
unless the Company shall give written notice to Executive that the Employment
Period shall cease to be so extended, in which event the Employment Period shall
terminate on the third anniversary of the date such notice is
given.
4. Compensation.
(a) During
the first year of the Employment Period, the Company will pay to Executive an
annual base salary (“Base Salary”) of Four
Hundred Thousand Dollars ($400,000.00), minus applicable withholdings, payable
in accordance with the Company’s normal payroll
practices. Executive’s Base Salary will be adjusted annually
thereafter at the discretion of the Compensation Committee of the Board (the
“Committee”),
based upon the performance of Executive and the Company.
(b) During
the Employment Period, Executive will be eligible to receive an annual bonus
targeted at one hundred percent (100%) of Base Salary if, as determined by the
Committee in its sole discretion, Executive meets certain criteria established
from year to year by the Committee (the “Bonus”), except that
during the first year of the Employment Period, Executive will receive a minimum
guaranteed Bonus of Two Hundred Thousand Dollars ($200,000.00) (the “Minimum First Year
Bonus”). The Bonus will be subject to all applicable
withholdings and will be paid between January 1 and March 15 of the year
following the end of the year in which the Bonus was earned, unless otherwise
provided herein.
(c) As
an inducement to enter into this Agreement and in accordance with the exemptions
provided for in Section 303A.08 of the New York Stock Exchange listing
standards, the Committee has approved a grant to the Executive of 50,000 shares
of restricted common stock of the Company (the “Inducement
Award”). The terms and conditions of the Inducement Award will
be governed by a Restricted Stock Award Agreement between the Executive and the
Company, the form of which is attached as Exhibit A to this
Agreement.
(d) During
the Employment Period, Executive shall be eligible to participate in all benefit
plans in effect for executives and Employees of the Company, subject to the
terms and conditions of such plans.
(e) During
the Employment Period, Executive shall be entitled to four (4) weeks of paid
vacation per calendar year.
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(f) During
the Employment Period, Executive shall be entitled to receive all other fringe
benefits available to executives of the Company.
(g) During
the Employment Period, the Company will reimburse Executive for all approved
business expenses incurred by Executive in the performance of Executive’s duties
under this Agreement in accordance with the policies and procedures of the
Company.
5. Termination. This
Agreement may be terminated by any of the following events:
(a) Mutual
written agreement between Executive and the Company at any time;
(b) Executive’s
death;
(c) Executive’s
Disability which renders Executive unable to perform the essential functions of
Executive’s job even with reasonable accommodation;
(d) By
the Company with or without Cause; and
(e) By
Executive with or without Good Reason.
6. Company’s Post-Termination
Obligations.
(a) Termination by Mutual
Written Agreement. If this Agreement terminates by mutual agreement
between Executive and the Company, then the Company will pay Executive (i) all
accrued but unpaid wages, based on Executive’s then current Base Salary, through
the termination date; (ii) all earned and accrued but unpaid Bonuses, but only
if Executive was employed for the entire annual Bonus period; and (iii) all
approved, but unreimbursed, business expenses, provided that a request for
reimbursement of business expenses is submitted in accordance with the Company’s
policies and submitted within five (5) business days of Executive’s termination
date. Payment of such amounts shall be made by the Company within
thirty (30) days of Executive’s termination date, with the payment date
determined by the Company in its sole discretion. The Company shall
have no other obligations to Executive, including under any provision of this
Agreement, Company policy or otherwise; however, Executive shall continue to be
bound by Section
8 and all other post-termination obligations to which Executive is
subject, including, but not limited to, the obligations contained in this
Agreement.
(b) Termination for Cause or
Without Good Reason. If this Agreement is terminated by the Company for
Cause or by Executive without Good Reason, then the Company will pay Executive
(i) all accrued but unpaid wages, based on Executive’s then current Base Salary,
through the termination date and (ii) all approved, but unreimbursed, business
expenses, provided that a request for reimbursement of business expenses is
submitted in accordance with the Company’s policies and submitted within five
(5) business days of Executive’s termination date. Payment of such
amounts shall be made by the Company within thirty (30) days of Executive’s
termination date, with the payment date determined by the Company in its sole
discretion. The Company shall have no other obligations to Executive,
including under any provision of this Agreement, Company policy or otherwise;
however, Executive shall continue to be bound by Section 8 and all
other post-termination obligations to which Executive is subject, including, but
not limited to, the obligations contained in this Agreement.
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(c) Termination for Death or
Disability. If this Agreement is terminated due to Executive’s
death or Disability, then the Company will pay Executive (i) all accrued but
unpaid wages, based on Executive’s then current Base Salary, through the
termination date; (ii) all approved, but unreimbursed, business expenses,
provided that a request for reimbursement of business expenses is submitted in
accordance with the Company’s policies and submitted within five (5) business
days of Executive’s termination date; (iii) all earned and accrued but unpaid
Bonuses prorated to the date of Executive’s death or Disability; and (iv) any
COBRA continuation coverage premiums required for the coverage of Executive and
Executive’s eligible dependents under the Company’s major medical group health
plan for a period of up to eighteen (18) months (or, if less, the period that
Executive and Executive’s eligible dependents are entitled to under the
applicable provisions of COBRA), provided, however, that Executive and
Executive’s eligible dependents shall be solely responsible for any requirements
which must be satisfied or actions that must be taken in order to obtain such
COBRA continuation coverage other than the payment of COBRA
premiums. Payment of the amounts listed in Section 6(c)(i), (ii) and
(iii) shall be made by the Company within thirty (30) days of Executive’s
termination date, with the payment date determined by the Company in its sole
discretion. The Company shall have no other obligations to Executive,
including under any provision of this Agreement, Company policy or otherwise;
however, Executive shall continue to be bound by Section 8 and all
other post-termination obligations to which Executive is subject, including, but
not limited to, the obligations contained in this Agreement.
(d) Termination without Cause or
for Good Reason. If this Agreement is terminated by the
Company without Cause (which includes any non-renewal under Section 3) or by
Executive for Good Reason, then the Company will pay Executive (i) all accrued
but unpaid wages through the termination date, based on Executive’s then current
Base Salary; (ii) all accrued but unpaid vacation through the
termination date, based on Executive’s then current Base Salary; (iii) all
approved, but unreimbursed, business expenses, provided that a request for
reimbursement of business expenses is submitted in accordance with the Company’s
policies and submitted within five (5) business days of Executive’s termination
date; (iv) all earned and accrued but unpaid bonuses; and (v) any COBRA
continuation coverage premiums required for the coverage of Executive and
Executive’s eligible dependents under the Company’s major medical group health
plan for a period of up to eighteen (18) months (or, if less, the period that
Executive and Executive’s eligible dependents are entitled to under the
applicable provisions of COBRA), provided, however, that Executive and
Executive’s eligible dependents shall be solely responsible for any requirements
which must be satisfied or actions that must be taken in order to obtain such
COBRA continuation coverage other than the payment of COBRA
premiums. Payment of the amounts listed in Section 6(d)(i), (ii),
(iii) and (iv) shall be made by the Company within thirty (30) days of
Executive’s termination date, with the payment date determined by the Company in
its sole discretion. In addition, the Company will pay Executive a
separation payment equal to the sum of (A) three times (3.0x) Executive’s then
current Base Salary, and (B) three times (3.0x) Executive’s average Bonus for
the two (2) annual Bonus periods completed prior to the
termination. In the event this Agreement is terminated by the Company
without Cause or by Executive for Good Reason before Executive completes two (2)
annual Bonus periods, then part (B) will be three times (3.0x) Executive’s Bonus
for the most recent completed annual Bonus period, or if Executive has not been
employed for a complete annual Bonus period, then it will be three times (3.0x)
the Minimum First Year Bonus. Payment of the separation payment shall commence
on the 60th day
following the Executive’s termination date and will be paid over a period of
thirty-six (36) months in accordance with the Company’s regular payroll
practices. Except as set forth in this Section 6(d), the
Company shall have no other obligations to Executive.
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(e) The
Company’s obligation to provide the payments set forth in Section 6(d)
above shall be conditioned upon the following (the “Separation
Conditions”):
(i) Executive’s
(or, in the case of Executive’s death or Disability, the Executive’s estate or
trustee, as applicable) execution and non-revocation of a separation agreement
in a form prepared by the Company, which will include a general release from
liability so that Executive will release the Company and its Subsidiaries from
any and all liability and claims of any kind as permitted by law;
and
(ii) Executive’s
compliance with the restrictive covenants (Section 8) and all
post-termination obligations, including, but not limited to, the obligations
contained in this Agreement.
(f) If
Executive does not timely execute an effective separation agreement (including
the expiration of any revocation period) within sixty (60) days of Executive’s
termination date as set forth in Section 6(e) above,
the Company will not provide any payments or benefits to Executive under Section
6(d). The Company’s obligation to make the separation payments
set forth in Section
6(d) shall terminate immediately upon any breach by Executive of any
post-termination obligations to which Executive is subject.
7. Change of
Control.
(a) Notwithstanding
anything to the contrary in the Incentive Plan or award agreement, upon a Change
of Control, all of Executive’s outstanding unvested equity-based awards
(including stock options and restricted stock) granted pursuant to the Incentive
Plan shall vest and become immediately exercisable and unrestricted, without any
action by the Board or any committee thereof.
(b) Notwithstanding
the provisions of Section 6, if, within
one (1) year following a Change of Control, the Company terminates Executive’s
employment without Cause or Executive resigns for Good Reason, then the Company
will pay Executive the following amounts:
(i) all
accrued but unpaid wages through the termination date, based on Executive’s then
current Base Salary;
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(ii) a
separation payment equal to the sum of (A) two point ninety-nine times (2.99x)
Executive’s then current Base Salary, and (B) two point ninety-nine times
(2.99x) Executive’s average Bonus for the two (2) annual Bonus periods completed
prior to the Change of Control, which separation payment shall be paid on the
sixtieth (60th) day following Executive’s termination date (in the event a
Change of Control occurs before Executive completes two (2) annual Bonus
periods, then part (B) will be two point ninety-nine times (2.99x) Executive’s
Bonus for the most recent completed annual Bonus period, or if Executive has not
been employed for a complete annual Bonus period, then it will be two point
ninety-nine times (2.99x) the Minimum First Year Bonus);
(iii) a
payment for all earned and accrued but unpaid bonuses;
(iv) a
payment for all approved, but unreimbursed, business expenses, provided that a
request for reimbursement of business expenses is submitted in accordance with
the Company’s policies and submitted within five (5) business days of
Executive’s termination date; and
(v) payment
of any COBRA continuation coverage premiums required for the coverage of
Executive and Executive’s eligible dependents under the Company’s major medical
group health plan for a period of up to eighteen (18) months (or, if less, the
period that Executive and Executive’s eligible dependents are entitled to under
the applicable provisions of COBRA), provided, however, that Executive and
Executive’s eligible dependents shall be solely responsible for any requirements
which must be satisfied or actions that must be taken in order to obtain such
COBRA continuation coverage other than the payment of COBRA
premiums.
Payment
of the amounts listed in Section 7(b)(i), (iii) and (iv) shall be paid by the
Company within thirty (30) days of Executive’s termination date, with the
payment date determined by the Company in its sole discretion. The
payments and benefits set forth in this Section 7 shall be
provided to Executive in lieu of any benefits to which Executive may be entitled
to receive under Section 6(d) above,
provided, however, that Executive’s right to receive the separation payments and
benefits set forth in this Section 7 shall be
subject to the Separation Conditions set forth in Section 6(e)
above. The separation payments and benefits set forth in this Section 7 shall
constitute full satisfaction of the Company’s obligations under this Agreement,
any Company policy or otherwise.
8. Executive’s Post-Termination
Obligations.
(a) Return of
Materials. Upon the termination of Executive’s employment for
any reason, Executive shall return to the Company all of the Company’s property,
including, but not limited to, keys, passcards, credit cards, customer lists,
rolodexes, tapes, software, computer files, marketing and sales materials and
any other property, record, document or piece of equipment belonging to the
Company.
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(b) Set-Off. If
Executive has any outstanding obligations to the Company upon the termination of
Executive’s employment for any reason, Executive hereby authorizes the Company
to deduct any amounts owed to the Company from Executive’s final paycheck and/or
any amounts that would otherwise be due to Executive, including under Section 6 or Section 7 above but
only to the extent such off-set is made in accordance with Treasury Regulation
1.409A-3(j)(4)(xiii). No other set-off shall be permitted under this
Agreement.
(c) Non-Disparagement.
Executive and the Company shall refrain from any criticisms or disparaging
comments about each other or in any way relating to Executive’s employment or
separation from employment; provided, however, that nothing in this Agreement
shall apply to or restrict in any way the communication of information by the
Company or any of its Affiliates or Executive to any state or federal law
enforcement agency, and none of Executive, the Company or any of its Affiliates
will be in breach of the covenant contained above solely by reason of testimony
or disclosure that is compelled by applicable law or regulation or process of
law.
(d) Restrictive
Covenants. Executive acknowledges that the restrictions contained in this
Section 8 are
reasonable and necessary to protect the legitimate business interests of the
Company and will not impair or infringe upon Executive’s right to work or earn a
living after Executive’s employment with the Company terminates.
(e) Trade Secrets and
Confidential Information.
(i) Executive
represents and warrants that Executive (A) is not subject to any legal or
contractual duty or agreement that would prevent or prohibit Executive from
performing the duties contemplated by this Agreement or otherwise complying with
this Agreement, and (B) is not in breach of any legal or contractual duty or
agreement, including any agreement concerning trade secrets or confidential
information owned by any other party.
(ii) Executive
agrees that Executive will not (A) use, disclose or reverse engineer Trade
Secrets or Confidential Information for any purpose other than the Company’s
Business, except as authorized in writing by the Company; (B) during Executive’s
employment with the Company, use, disclose or reverse engineer (1) any
confidential information or trade secrets of any former employer or third party
or (2) any works of authorship developed in whole or in part by Executive during
any former employment or for any other party, unless authorized in writing by
the former employer or third party; or (C) upon Executive’s resignation or
termination with the Company (1) retain Trade Secrets or Confidential
Information, including any copies existing in any form (including electronic
form), which are in Executive’s possession or control or (2) destroy, delete or
alter Trade Secrets or Confidential Information without the Company’s prior
written consent.
(iii) The
obligations under this Section 8 shall
remain in effect as long as Trade Secrets and Confidential Information
constitute trade secrets or confidential information under applicable
law. The confidentiality, property and proprietary rights protections
available in this Agreement are in addition to, and not exclusive of, any and
all other rights to which the Company is entitled under federal and state law,
including, but not limited to, rights provided under copyright laws, trade
secret and confidential information laws and laws concerning fiduciary
duties.
12
(f) Non-Competition. During
the Restricted Period, Executive agrees that Executive shall not perform
services which are substantially similar and/or equivalent to the Duties,
individually or on behalf of any person, firm, partnership, association,
business organization, corporation or entity engaged in the Business within the
Territory. The Parties agree and acknowledge that (i) the periods of
restriction and Territory of restriction contained in this Agreement are fair
and reasonable in that they are reasonably required for the protection of the
Company and that the Territory is the area in which Executive performs services
for the Company and (ii) by having access to information concerning Employees
and actual or prospective Customers of the Company or any of its Subsidiaries,
Executive shall obtain a competitive advantage as to the Company.
(g) Non-Solicitation of
Customers. During the Restricted Period, Executive will not,
directly or indirectly, solicit any Customer of the Company for the purpose of
providing any goods or services competitive with the Business within the
Territory. The restrictions set forth in this Section 8(g) apply
only to the Customers with whom Executive had Contact.
(h) Non-Recruitment of
Employees. During the Restricted Period, Executive will not,
directly or indirectly, solicit, recruit or induce any Employee to (i) terminate
his or her employment relationship with the Company or any of its Subsidiaries
or (ii) work for any other person or entity engaged in the
Business.
(i) Post-Employment
Disclosure. During the Restricted Period, Executive shall
provide a copy of this Agreement to persons and/or entities for whom Executive
works or consults as an owner, partner, joint venturer, employee or independent
contractor. If, during the Restricted Period, Executive works or
consults for another person or entity as an owner, partner, joint venturer,
employee or independent contractor, Executive shall provide the Company with
such person or entity’s name, the nature of such person or entity’s business,
Executive’s job title and a general description of the services Executive will
provide.
(j) Resignation. Upon
the termination of Executive’s employment with the Company for any reason and
upon the request of the Company, Executive shall deliver to the Company a
written resignation from all offices, membership on the Board and fiduciary
positions in which Executive serves for the Company and each of its Subsidiaries
and Affiliates.
9. Work
Product. Executive’s employment duties may include creating,
developing and/or inventing in areas directly or indirectly related to the
Business of the Company or to a line of business that the Company may reasonably
be interested in pursuing. If ownership of all right, title and
interest to the legal rights in and to the Work Product will not vest
exclusively in the Company, then, without further consideration, Executive
assigns all presently-existing Work Product to the Company and agrees to assign,
and automatically assigns, all future Work Product to the
Company. The Company will have the right to obtain, and hold in its
own name, copyrights, patents, design registrations, proprietary database
rights, trademarks, rights of publicity and any other protection available in
the Work Product. At the Company’s request, Executive agrees to perform, during
or after Executive’s employment with the Company, any acts to transfer, perfect
and defend the Company’s ownership of the Work Product, including, but not
limited to (a) executing all documents (including a formal assignment to
the Company) necessary for filing an application or registration for protection
of the Work Product (an “Application”);
(b) explaining the nature of the Work Product to persons designated by the
Company; (c) reviewing Applications and other related papers; or (d)
providing any other assistance reasonably required for the orderly prosecution
of Applications. Executive agrees to provide the Company with a
written description of any Work Product in which Executive is involved (solely
or jointly with others) and the circumstances attendant to the creation of such
Work Product.
13
10. License. During
Executive’s employment and after Executive’s employment with the Company
terminates, Executive grants to the Company an irrevocable, nonexclusive,
worldwide, royalty-free license to (a) make, use, sell, copy, perform, display,
distribute or otherwise utilize copies of the Licensed Materials; (b) prepare,
use and distribute derivative works based upon the Licensed Materials; and (c)
authorize others to do the same. Executive shall notify the Company
in writing of any Licensed Materials Executive delivers to the
Company.
11. Release. During
Executive’s employment and after Executive’s employment with the Company
terminates, Executive consents to the Company’s use of Executive’s image,
likeness, voice or other characteristics in the Company’s products or
services. Executive releases the Company from any causes of action
that Executive has or may have arising out of the use, distribution, adaptation,
reproduction, broadcast or exhibition of such characteristics.
12. Injunctive
Relief. Executive agrees that, if Executive breaches Section 8 of this
Agreement, (a) the Company would suffer irreparable harm; (b) damages would be
difficult to determine, and money damages alone would be an inadequate remedy
for the injuries suffered by the Company; and (c) if the Company seeks
injunctive relief to enforce this Agreement, Executive hereby waives and will
not (i) assert any defense that the Company has an adequate remedy at law with
respect to the breach; (ii) require that the Company submit proof of the
economic value of any Trade Secret or Confidential Information; or (iii) require
the Company to post a bond or any other security. Nothing contained
in this Agreement shall limit the Company’s right to any other remedies at law
or in equity.
13. Payment of Defense
Costs. If Executive is individually named as a defendant in a
lawsuit relating to or arising out of Executive’s employment with the Company,
then the Company agrees to pay the reasonable attorneys’ fees and expenses
Executive incurs in defending such lawsuit (the “Defense
Costs”). The Company will not pay any damages or any other
sums or relief for which Executive is held liable. If Executive is
held liable, then Executive agrees to reimburse the Company for all Defense
Costs the Company paid to Executive or on Executive’s behalf. The
Company’s obligation under this Section 13 shall not
apply to any claim or lawsuit brought by the Company against Executive. Payment
of the Defense Costs shall be the Company’s only obligation under this Section 13; provided,
however, that nothing in this Section 13 shall be
construed to limit either Party’s rights or obligations under any
indemnification agreement or the Company’s organizational documents, as
applicable.
14
14. Severability. The
provisions of this Agreement are severable. If any provision of this
Agreement is determined to be unenforceable, in whole or in part, then such
provision shall be modified so as to be enforceable to the maximum extent
permitted by law. If such provision cannot be modified to be
enforceable, the provision shall be severed from this Agreement to the extent
unenforceable. The remaining provisions and any partially enforceable
provisions shall remain in full force and effect.
15. Attorneys’
Fees. In the event of litigation relating to this Agreement,
the prevailing Party shall be entitled to recover attorneys’ fees and costs of
litigation in addition to all other remedies available at law or in
equity.
16. Waiver. Either
Party’s failure to enforce any provision of this Agreement shall not act as a
waiver of that or any other provision. Either Party’s waiver of any
breach of this Agreement shall not act as a waiver of any other
breach.
17. Entire
Agreement. This Agreement constitutes the entire agreement
between the Parties concerning the subject matter of this
Agreement. This Agreement supersedes any prior communications,
agreements or understandings, whether oral or written, between the Parties
relating to the subject matter of this Agreement. Other than the
terms of this Agreement, no other representation, promise or agreement has been
made with Executive to cause Executive to sign this Agreement.
18. Amendments. This
Agreement may not be amended or modified except in a writing signed by both
Parties.
19. Successors and
Assigns. This Agreement shall be assignable to, and shall
inure to the benefit of, the Company’s successors and assigns, including,
without limitation, successors through merger, name change, consolidation or
sale of a majority of the Company’s stock or assets and shall be binding upon
Executive. Executive shall not have the right to assign Executive’s rights or
obligations under this Agreement. The covenants contained in Section 8 of this
Agreement shall survive the termination of Executive’s employment with the
Company, regardless of which Party causes the termination or the reason for the
termination.
20. Governing
Law. The laws of the State of Tennessee shall govern this
Agreement. If Tennessee’s conflict of law rules would apply another state’s
laws, the Parties agree that Tennessee law shall still govern.
21. No Strict
Construction. If there is a dispute about the language of this
Agreement, the fact that one Party drafted this Agreement shall not be
considered in its interpretation.
22. Notice.
Whenever any notice is required, it shall be given in writing addressed as
follows:
|
To
Company:
|
Attention: Chairman
of the Board of Directors
000
Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxxx 00000
|
15
|
To
Executive:
|
Xxxxxxx
X. Xxxxxxxx
0000
Xxxxxxx Xxxxx
Xxxxxxxxxx,
Xxxxxxxxx 00000
|
Notice shall be deemed given and
effective when deposited in the U.S. mail, sent to the receiving party by
electronic means or when actually received. Either Party may change
the address to which notices shall be delivered or mailed by notifying the other
party of such change in accordance with this Section.
23. Consent to Jurisdiction and
Venue. Executive agrees that any claim arising out of or
relating to this Agreement shall be brought in a state or federal court of
competent jurisdiction in Tennessee. Executive consents to the
personal jurisdiction of the state and/or federal courts located in Tennessee.
Executive waives (a) any objection to jurisdiction or venue, or (b) any defense
claiming lack of jurisdiction or improper venue in any action brought in such
courts.
24. Affirmation. Executive
acknowledges that Executive has carefully read this Agreement, Executive knows
and understands its terms and conditions and Executive has had the opportunity
to ask the Company any questions Executive may have had prior to signing this
Agreement.
25. Compliance with Code Section
409A.
(a) It
is intended that (i) each payment or installment of payments provided under this
Agreement is a separate “payment” for purposes of Code Section 409A, and (ii)
that the payments satisfy, to the greatest extent possible, the exemptions from
the application of Code Section 409A, including those provided under Treasury
Regulations 1.409A-1(b)(4) (regarding short-term deferrals), 1.409A-1(b)(9)(iii)
(regarding the two-times, two (2) year exception) and 1.409A-1(b)(9)(v)
(regarding reimbursements and other separation pay). Notwithstanding
anything to the contrary herein, if the Company determines (i) that on the date
of Executive’s “separation from service” (as such term is defined under Treasury
Regulation 1.409A-1(h)) or at such other time that the Company determines to be
relevant, Executive is a “specified employee” (as such term is defined under
Treasury Regulation 1.409A-1(i)(1)) of the Company, and (ii) that any payments
to be provided to Executive pursuant to this Agreement are or may become subject
to the additional tax under Code Section 409A(a)(1)(B) or any other taxes or
penalties imposed under Code Section 409A if provided at the time otherwise
required under this Agreement, then such payments shall be delayed until the
date that is six (6) months after the date of Executive’s “separation from
service” (as such term is defined under Treasury Regulation 1.409A-1(h)) or, if
sooner, the date of Executive’s death. Any payments delayed pursuant
to this Section
25 shall be made in a lump sum on the first day of the seventh month
following Executive’s “separation from service” (as such term is defined under
Treasury Regulation 1.409A-1(h)) or, if sooner, the date of Executive’s
death. It is intended that the Agreement shall comply with the
provisions of Section 409A of the Code and the Treasury Regulations relating
thereto so as not to subject the Executive to the payment of additional taxes
and interest under Section 409A of the Code. In furtherance of this intent, this
Agreement shall be interpreted, operated, and administered in a manner
consistent with these intentions. Notwithstanding anything herein to
the contrary, a termination of Executive’s employment shall not be deemed to
have occurred for purposes of any provision of this Agreement providing for the
payment of any amounts or benefits upon or following a termination of employment
unless such termination is also a “separation from service” within the meaning
of Code Section 409A (and Treasury Regulation 1.409A-1(h)) (which, by
definition, includes a separation from any other entity that would be deemed a
single employer together with the Company for this purpose under Code Section
409A (and Treasury Regulation 1.409A-1(h)), and for purposes of any such
provision of this Agreement, references to a “termination,” “termination of
employment,” “termination date,” or similar terms shall mean “separation from
service.”
16
(b) In
addition, to the extent that any reimbursement, fringe benefit or other, similar
plan or arrangement in which the Executive participates during the term of
Executive’s employment under this Agreement or thereafter provides for a
“deferral of compensation” within the meaning of Section 409A of the Code, (i)
the amount eligible for reimbursement or payment under such plan or arrangement
in one calendar year may not affect the amount eligible for reimbursement or
payment in any other calendar year (except that a plan providing medical or
health benefits may impose a generally applicable limit on the amount that may
be reimbursed or paid), (ii) subject to any shorter time periods provided herein
or the applicable plans or arrangements, any reimbursement or payment of an
expense under such plan or arrangement must be made on or before the last day of
the calendar year following the calendar year in which the expense was incurred,
and (iii) the right to any reimbursement or in-kind benefit is not subject to
liquidation or exchange for another benefit.
(c) By
accepting this Agreement, Executive hereby agrees and acknowledges that neither
the Company nor its Subsidiaries make any representations with respect to the
application of Section 409A of the Code to any tax, economic or legal
consequences of any payments payable to the Executive
hereunder. Further, by the acceptance of this Agreement, the
Executive acknowledges that (i) Executive has obtained independent tax advice
regarding the application of Section 409A of the Code to the payments due to the
Executive hereunder, (ii) Executive retains full responsibility for the
potential application of Section 409A of the Code to the tax and legal
consequences of payments payable to the Executive hereunder and (iii) the
Company shall not indemnify or otherwise compensate the Executive for any
violation of Section 409A of the Code that my occur in connection with this
Agreement. The parties agree to cooperate in good faith to amend such
documents and to take such actions as may be necessary or appropriate to comply
with Code Section 409A.
[SIGNATURES ON FOLLOWING
PAGE]
17
IN WITNESS WHEREOF, the
Parties hereto have executed this Agreement effective as of the Effective
Date.
|
By:
|
/s/ Xxxx X. Xxxxx
|
|
|
Name: Xxxx
X. Xxxxx
|
||
|
Title: Chairman
of the Board of Directors
|
||
|
/s/ Xxxxxxx X. Xxxxxxxx
|
||
|
Xxxxxxx
X. Xxxxxxxx
|
||
18
Exhibit
A
Restricted
Stock Award Agreement for Inducement Award
(see attached)
19
