EXHIBIT 10.5
JDN REALTY CORPORATION
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of November 27, 2000 (the "Effective Date"),
is by and between XXXXXX X. XXXXXX (the "Employee") and JDN REALTY CORPORATION,
a Maryland corporation (the "Company").
WITNESSETH:
WHEREAS, the Employee desires to be employed by the Company, and the
Company desires to employ the Employee, on the terms, covenants and conditions
hereinafter set forth in this Agreement.
NOW, THEREFORE, for the reasons set forth above, and in consideration
of the mutual promises and agreements herein set forth, the Company and the
Employee agree as follows:
1. Employment.
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Subject to the terms and conditions set forth in this Agreement, on
and as of the Effective Date the Company hereby employs and engages the Employee
to perform the duties and responsibilities delegated or assigned from time to
time by the board of directors of the Company (the "Board of Directors") or the
Chief Executive Officer, and the Employee will initially serve as Vice
President, Acquisitions and Dispositions, of the Employer. The duties and
responsibilities the Employee is to perform hereunder shall be conducted from
the Nashville, Tennessee metropolitan area, where the offices of the Company are
located. The Employee may be required from time to time to perform his duties
hereunder on an occasional basis at such other locations as the Board of
Directors shall reasonably designate or as the interests or business
opportunities of the Company may reasonably require; provided, however, that
without the Employee's consent, the Employee shall not be required to relocate
from the Nashville, Tennessee, metropolitan area. Occasional shall be defined
as not more than five (5) nights per month at such other locations. The Employee
hereby accepts such employment and agrees to serve the Company as an officer for
the term of this Agreement.
2. Term of Employment.
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Except as otherwise provided herein, the term of this Agreement shall
be for one (1) year commencing on the Effective Date and ending on the first
anniversary of the Effective Date (the "Employment Term"). While the Employee
is employed hereunder, the Employment Term shall automatically be extended for
one (1) year upon the occurrence of an anniversary of the Effective Date, unless
either party has given notice of intention to terminate at least ninety (90)
days prior to such anniversary of the Effective Date, or unless the Employee's
employment has otherwise terminated as hereinafter provided.
3. Devotion to Duties.
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The Employee agrees that during the period that he is employed
hereunder, he shall devote substantially all his business time and attention to
the business and affairs of the Company, shall use his best efforts to promote
the interests of the Company and shall not enter into any other business
affiliations or arrangements without the prior written consent of the Company.
"Business time" shall be defined as four (4) days per work week. Nothing in
this Section 3, however, is intended to prevent the Employee from engaging in
additional activities in connection with personal investments and community or
professional affairs that are not inconsistent with the Employee's duties and
obligations under this Agreement, including without limitation Section 10
hereof. If the Employee is elected as a director of the Employer or as a
director or officer of any of its affiliates, the Employee will fulfill the
Employee's duties as such director or officer without additional compensation.
4. Compensation of Employee.
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4.1. Base Salary. During the term of this Agreement, the Company
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shall pay to the Employee as compensation for the services to be performed by
the Employee a base salary of One Hundred Thirteen Thousand Nine Hundred Fifty-
five Dollars ($113,955.00) per year (the "Base Salary"). Base Salary represents
compensation for a four (4) days work week, Monday - Thursday. The Base Salary
shall be payable in periodic installments in accordance with the Company's
normal payroll practice and shall be subject to such withholdings and other
ordinary employee withholdings as may be required by law. Commencing on January
1, 2001 and on January 1 of each year thereafter, or as soon as practicable
thereafter, the Compensation Committee of the Board of Directors (the
"Compensation Committee"), or the Board of Directors if the Compensation
Committee is not then in existence, will review the Base Salary, and shall
authorize, in its sole discretion, an appropriate increase in the Base Salary.
4.2. Bonus. In addition to the compensation set forth elsewhere in
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this section 4, for each year or portion thereof during the term of this
Agreement and any extensions thereof, the Employee shall be entitled to receive
a bonus in an amount to be determined by the Compensation Committee, or the
Board of Directors if the Compensation Committee is not then in existence, in
its discretion, based upon its evaluation of the Employee's performance during
such year or portion thereof.
4.3. Benefits. The Employee shall be entitled to participate, during
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the period of actual employment, in all regular, full time employee benefit and
deferred compensation plans established by the Company to the extent the
Employee is eligible under the terms of such plans, including, without
limitation, any savings and profit sharing plan, dental and medical plans, life
insurance, and personal catastrophe and disability insurance, such participation
to be as provided in said employee benefit plans. The Employee shall also be
entitled during the period of actual employment to such paid vacation as agreed
upon at hiring to accrue at a rate of one (1) day per month or three (3) weeks
(at four [4] days per week) annually. For purposes of this Agreement, the term
"period of actual employment" means the portion of the Employment Term during
which
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the Employee is employed, but not the portion following the termination of
Employee's employment.
4.4. Office. The Employee shall be provided office space and such
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other facilities and services as the Company deems necessary or appropriate for
the performance of the Employee's duties under this Agreement.
4.5. Reimbursement of Expenses. The Company shall provide for the
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payment or reimbursement of all reasonable and necessary expenses incurred by
the Employee in connection with the performance of his duties under this
Agreement in accordance with the Company's expense reimbursement policy, as such
policy may change from time to time.
5. Termination of Employment.
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5.1. Termination for Cause. "Termination For Cause", as hereinafter
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defined, may be effected by the Company at any time during the term of this
Agreement by written notification to the Employee. Upon Termination For Cause,
the Employee shall immediately be paid all accrued salary, bonus compensation to
the extent earned ("earned bonus" shall be defined as the amount of bonus the
Employee would normally have earned in a full calendar year times the percentage
of the bonus year that has been completed. The amount of bonus the Employee
would normally have earned will be calculated as the average bonus of the last
two years), vested deferred compensation (other than pension plan or profit
sharing plan benefits which will be paid in accordance with the applicable
plan), any benefits under any plans of the Company in which the Employee is a
participant to the full extent of the Employee's rights under such plans,
accrued vacation pay and any appropriate business expenses incurred by the
Employee in connection with his duties hereunder, all to the date of
termination, but the Employee shall not be paid any other compensation or
reimbursement of any kind, including without limitation, severance compensation.
"Termination For Cause" shall mean termination by the Company of the Employee's
employment by the Company by reason of the Employee's (a) material breach of
this Agreement, or (b) failure to adhere to any written policy of the Company
which failure is determined by the Company to have a material adverse effect on
the Company, or (c) appropriation (or attempted appropriation) of a material
business opportunity of the Company, including attempting to secure or securing
any personal profit or benefit in connection with any transaction entered into
on behalf of the Company, or (d) misappropriation (or attempted
misappropriation) of any of the Company's funds or property, or (e) the
conviction of, the indictment (or its procedural equivalent) for or the entry of
a guilty plea or a plea of no contest with respect to, a felony, the equivalent
thereof, or any other crime with respect to which imprisonment is a possible
punishment, or (f) the good faith determination of the Company's Chief Executive
Officer, consistent with Company policy, that the Employee has failed to
perform the Employee's duties to the Company in a satisfactory manner, provided
however, that prior to a termination for failure to perform satisfactorily, the
Employee must be given at least thirty (30) days thereafter to improve his
performance to a satisfactorily level.
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5.2. Termination Other Than for Cause. Notwithstanding any other
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provisions of this Agreement, the Company may effect a "Termination Other Than
For Cause", as hereinafter defined, at any time upon giving written notice to
the Employee of such termination. Upon any Termination Other Than for Cause,
the Employee shall immediately be paid all accrued salary, bonus compensation to
the extent earned, vested deferred compensation (other than pension plan or
profit sharing plan benefits which will be paid in accordance with the
applicable plan), any benefits under any plans of the Company in which the
Employee is a participant to the full extent of the Employee's rights under such
plans, accrued vacation pay and any appropriate business expenses incurred by
the Employee in connection with his duties hereunder, all to the date of
termination, and all severance compensation provided in subsection 6.2.
"Termination Other Than for Cause" shall mean termination by the Company of the
Employee's employment with the Company other than a termination pursuant to
subsection 5.1, 5.3, 5.4, 5.5 or 5.6, or termination by the Employee of the
Employee's employment with the Company by reason of (i) the Company's material
breach of this Agreement, (ii) the assignment of the Employee without his
consent to a position, responsibilities or duties of a materially lesser status
or degree of responsibility than his position, responsibilities or duties as of
the Effective Date, (iii) the requirement by the Company that the employee
assume a schedule of five (5) days per week without employee's consent, or (iv)
the requirement by the Company that the Employee be based anywhere other than
the Company's Nashville, Tennessee metropolitan area office, without the
Employee's consent or if the Company elects to close the Nashville office.
5.3. Termination by Reason of Disability. If, during the term of
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this Agreement, the Employee, in the reasonable judgment of the Board of
Directors, has failed to perform his duties under this Agreement on account of
illness or physical or mental incapacity, and such illness or incapacity
continues for a period of more than 120 consecutive days, or 180 days during any
twelve-month period, the Company shall have the right to terminate the
Employee's employment hereunder by written notification to the Employee and
payment to the Employee of all accrued salary, bonus compensation to the extent
earned, vested deferred compensation (other than pension plan or profit sharing
plan benefits which will be paid in accordance with the applicable plans), any
benefits under any plans of the Company in which the Employee is a participant
to the full extent of the Employee's rights under such plans, accrued vacation
pay and any appropriate business expenses incurred by the Employee in connection
with his duties hereunder, all to the date of termination, but the Employee
shall not be paid any other compensation or reimbursement of any kind, including
without limitation, severance compensation.
5.4. Death. In the event of the Employee's death during the term of
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this Agreement, the Employee's employment shall be deemed to have terminated as
of the last day of the month during which his death occurs and the Company shall
pay to his estate or such beneficiaries as the Employee may from time to time
designate all accrued salary, bonus compensation to the extent earned, vested
deferred compensation (other than pension plan or profit sharing plan benefits
which will be paid in accordance with the applicable plan), any benefits under
any plans of the Company in which the Employee is a participant to the full
extent of Employee's rights under such plans, accrued vacation pay and any
appropriate business
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expenses incurred by the Employee in connection with his duties hereunder, all
to the date of termination, but the Employee's estate shall not be paid any
other compensation or reimbursement of any kind, including without limitation,
severance compensation.
5.5. Voluntary Termination. In the event of a "Voluntary
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Termination," as hereinafter defined, the Company shall immediately pay all
accrued salary, bonus compensation to the extent earned, vested deferred
compensation (other than pension plan or profit sharing plan benefits which will
be paid in accordance with the applicable plans), any benefits under any plans
of the Company in which the Employee is a participant to the full extent of the
Employee's rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by the Employee in connection with his duties
hereunder, all to the date of termination, but no other compensation or
reimbursement of any kind, including without limitation, severance compensation.
"Voluntary Termination" shall mean termination by the Employee of Employee's
employment other than (i) constructive termination as described in paragraphs
(i) through (iv) of subsection 5.2, (ii) termination by reason of the Employee's
disability as described in subsection 5.3, (iii) termination by reason of the
Employee's death as described in subsection 5.4, and (iv) Termination Upon a
Change in Control as described in subsection 5.6.
5.6. Termination Upon a Change in Control. In the event of a
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"Termination Upon a Change in Control," as hereinafter defined, the Employee
shall immediately be paid all accrued salary, bonus compensation to the extent
earned, vested deferred compensation (other than pension plan or profit sharing
plan benefits which will be paid in accordance with the applicable plans), any
benefits under any plans of the Company in which Employee is a participant to
the full extent of the Employee's rights under such plans, accrued vacation pay
and any appropriate business expenses incurred by the Employee in connection
with his duties hereunder, all to the date of termination, and all severance
compensation provided in subsection 6.1. "Termination Upon a Change in Control"
shall mean a Termination Other than For Cause by the Company within one hundred
eighty (180) days following or ninety (90) days prior to a change in control as
hereinafter defined or as termination by the Employee (other than under the
threat of Termination for Cause) during the period from the ninetieth (90th) day
to the one hundred eightieth (180th) day following a Change in Control. "Change
in Control" shall mean date on which the Company first determines that any of
the following has occurred:
(a) any individual, entity or group (a "Person"), becomes the
beneficial owner of 33% or more of the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors of the Company (the "Company Outstanding Voting
Securities"); provided, however, that any acquisition directly from or by the
Company or any acquisition by a company pursuant to a transaction which complies
with subparagraphs (i), (ii) and (iii) in paragraph (b) below shall be excluded
from this paragraph (a);
(b) consummation of a reorganization, merger or consolidation (a
"Business Combination") of the Company, unless, in each case, following such
Business Combination (i) all or substantially all of the Persons who were the
beneficial owners of the Company Outstanding Voting Securities immediately prior
to such Business Combination beneficially own, directly or
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indirectly, more than a majority of the combined voting power of the then
outstanding voting securities entitled to vote generally in the election of
directors of the company resulting from such Business Combination, (ii) no
Person (excluding any company resulting from such Business Combination)
beneficially owns, directly or indirectly, 33% or more of the combined voting
power of the then outstanding voting securities entitled to vote generally in
the election of directors of the company resulting from such Business
Combination except to the extent such ownership existed prior to the Business
Combination, and (iii) at least a majority of the members of the Board of
Directors of the company resulting from the Business Combination are Continuing
Directors (as hereinafter defined) at the time of the execution of the
definitive agreement, or the action of the Board, providing for such Business
Combination;
(c) the date on which Continuing Directors (as hereinafter defined)
cease for any reason to constitute at least a majority of the Board of Directors
of the Company.
As used in this subsection 5.6, the definitions of the terms
"beneficial owner" and "group" shall have the meanings ascribed to those terms
in Rule 13(d)(3) under the Securities Exchange Act of 1934. As used in this
subsection 5.6, the term "Continuing Directors" shall mean, as of any date of
determination, (i) any member of the Board of Directors on the Effective Date of
this Agreement, (ii) any person who has been a member of the Board of Directors
for the two years immediately preceding such date of determination, or (iii) any
person who was nominated for election or elected to the Board of Directors with
the affirmative vote of the greater of (A) a majority of the Continuing
Directors who were members of the Board of Directors at the time of such
nomination or election or (B) at least four Continuing Directors but excluding,
for purposes of this clause (iii), any such individual whose initial assumption
of office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies by or on behalf of a Person other than the Board of
Directors of the Company. "Control" means the direct or indirect ownership of
voting securities constituting more than fifty percent (50%) of the issued
voting securities of a corporation.
5.7. Notice of Termination. The Company or the Employee may effect a
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termination of the Employee's employment by the Company pursuant to the
provisions of this Section 5 upon giving thirty (30) days' written notice to the
other party of such termination.
6. Severance Compensation
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6.1. Termination Upon Change in Control. In the event the Employee's
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employment is terminated in a Termination Upon a Change in Control, the Employee
shall be paid the following as severance compensation:
(a) For one (1) year following such termination of employment, an
amount (payable on the dates specified in subsection 4.1 except as
otherwise provided herein) equal to the sum of (i) the Base Salary at
the rate payable at the
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time of such termination and (ii) the average of the annual bonus
earned by the Employee in the two (2) years immediately preceding the
date of termination.
(b) In the event that the Employee is not otherwise entitled to
fully exercise all awards granted to him under the Company's Incentive
Stock Plan, and the Incentive Stock Plan does not otherwise provide
for acceleration of exerciseability upon the occurrence of the Change
in Control described herein, such awards shall become immediately
exercisable upon a Change in Control.
(c) The Employee shall continue to accrue retirement benefits and
shall continue to enjoy any benefits under any plans of the Company in
which the Employee is a participant to the full extent of the
Employee's rights under such plans, including any perquisites provided
under this Agreement, through the remainder of the Employment Term;
provided, however, that the benefits under any such plans of the
Company in which the Employee is a participant, including any such
perquisites, shall cease upon the Employee's obtaining other
employment. If necessary to provide such benefits to the Employee,
the Company shall, at its election, either: (i) amend its employee
benefit plans to provide the benefits described in this paragraph (c),
to the extent that such is permissible under the nondiscrimination
requirements and other provisions of the Internal Revenue Code of 1986
(the "Code") and the provisions of the Employee Retirement Income
Security Act of 1974, or (ii) provide separate benefit arrangements or
cash payments so that the Employee receives amounts equivalent
thereto, net of tax consequences.
6.2. Termination Other Than for Cause. In the event the Employee's
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employment is terminated in a Termination Other Than for Cause, the Employee
shall be paid as severance compensation his Base Salary, at the rate payable at
the time of such termination, for one (1) year from the date of termination.
Provided, however, that if the Employee obtains other employment during such
period, the Employee shall promptly give notice thereof to the Company and the
severance compensation payable to the Employee during such period will be
reduced by the amount of compensation that the Employee is receiving from such
other employment. Notwithstanding any provision in this subsection 6.2 to the
contrary, the Company may, in the Company's sole discretion, by delivery of a
notice to the Employee within thirty (30) days following a Termination Other
Than for Cause, elect to remit to the Employee a lump sum severance payment by
bank cashier's check equal to the present value of the flow of cash payments
that would otherwise be paid to the Employee pursuant to this subsection 6.2.
Such present value shall be determined as of the date of delivery of the notice
of election by the Company and shall be based on the prime rate, as reported by
XX Xxxxxx on the date of delivery of the election notice. If the Company elects
to remit a lump sum severance payment, the Company shall make such payment to
the Employee within thirty (30) days following the date on which the Company
notifies the Employee of its election. In the event that the Employee is not
otherwise entitled to fully exercise all awards granted to him under the
Company's Incentive Stock Plan, and the Incentive Stock Plan does not otherwise
provide for acceleration of
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exerciseability upon the occurrence of a Termination Other Than for Cause
described herein, such awards shall become immediately exercisable upon a
Termination Other Than for Cause.
6.3. Termination Upon Any Other Event. In the event of a Voluntary
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Termination, Termination For Cause, termination by reason of the Employee's
disability pursuant to subsection 5.5 or termination by reason of the Employee's
death pursuant to subsection 5.6, the Employee or his estate shall not be paid
any severance compensation.
6.4. Parachute Payment Reduction. Notwithstanding any other
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provisions of this Agreement, any amounts payable under this Agreement
(including but not limited to severance payments) shall be limited to the
maximum amount that may be paid so that no such payment will, when combined with
all other amounts to be received by the Employee upon a change in control
(described in Section 280G(b)(2)(A) of the Code), constitute a "parachute
payment" (defined in Section 280G(b)(2) of the Code) and so that no "excess
parachute payments" (defined in Section 280G(b)(1) of the Code) made to the
Employee are taxable to the Employee pursuant to Section 4999 of the Code. The
parties intend that the Employee shall receive the maximum payments permissible
that are not subject to the taxes described in Sections 280G and 4999 of the
Code and shall interpret this provision in accordance with such intention. In
further accord with such intention, nothing herein shall be construed to limit
the Employee's right to receive payments that do not exceed reasonable
compensation for services or to receive payments that are otherwise not taken
into account in calculating "parachute payments" under Section 280G of the Code.
7. Obligations Contingent on Performance.
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The obligations of the Company under this Agreement, including its
obligation to pay the compensation provided for herein, shall be contingent upon
the Employee's performance of his obligations under this Agreement.
8. Confidentiality.
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The Employee agrees at all times during and after the Employment Term
to hold in strict confidence all information concerning any matters affecting or
relating to the business of the Company, including without limiting the
generality of the foregoing its manner of operation, plans, protocols,
processes, computer programs, tenant lists, client lists, marketing information
and analyses, or other data, without regard to whether all of the foregoing
matters will be deemed confidential or material, except to the extent necessary
to effect Dispositions of Assets as directed by the Company. The Employee
agrees that he will not, directly or indirectly, use any such information for
the benefit of others than the Company or disclose or communicate any of such
information in any manner whatsoever other than to the directors, officers,
employees, agents and representatives of the Company who need to know such
information, who shall be informed by the Employee of the confidential nature of
such information and directed by the Employee to treat such information
confidentially. Upon the Company's request, the Employee shall return all
information furnished to him related to the business of the Company. The above
limitations on
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use and disclosure shall not apply to information which the Employee can
demonstrate: (a) was known to the Employee before receipt thereof from the
Company; (b) is learned by the Employee from a third party entitled to disclose
it; or (c) becomes known publicly other than through the Employee. The parties
hereto stipulate that all such information is material and confidential and
gravely affects the effective and successful conduct of the business of the
Company and the Company's goodwill, and that any breach of the terms of this
section 8 shall be a material breach of this Agreement. The terms of this
section 8 shall remain in effect following the termination of this Agreement.
9. Use of Proprietary Information.
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The Employee recognizes that the Company possesses a proprietary
interest in all of the information described in section 8 and has the exclusive
right and privilege to use, protect by copyright, patent or trademark,
manufacture or otherwise exploit the processes, ideas and concepts described
therein to the exclusion of the Employee, except as otherwise agreed between the
Company and the Employee in writing. The Employee expressly agrees that any
products, inventions, discoveries or improvements made by the Employee, his
agents or affiliates, during the term of this Agreement, based on or arising out
of the information described in section 8 shall be the property of and inure to
the exclusive benefit of the Company. The Employee further agrees that any and
all products, inventions, discoveries or improvements developed by the Employee
(whether or not able to be protected by copyright, patent or trademark) during
the course of his employment, or involving the use of the Company's time,
materials or other resources, shall be promptly disclosed to the Company and
shall become the exclusive property of the Company.
10. Non-Competition Agreement.
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10.1. Non-Competition. The Employee agrees that, during the period
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of actual employment, the Employee shall not, without the prior written consent
of the Company, directly or indirectly, own, manage, operate, control, be
connected with as an officer, employee, partner, consultant or otherwise, or
otherwise engage or participate in, except as an employee of the Company, or any
corporation directly or indirectly controlled by it, any corporation or other
business entity engaged in any activity competitive with the Company, including
the business of owning, developing, leasing, managing or disposing of shopping
center properties. Notwithstanding the foregoing, the ownership by the Employee
of less than 2% of any class of the outstanding capital stock of any corporation
conducting such a competitive business which is regularly traded on a national
securities exchange or in the over-the-counter market shall not be a violation
of the foregoing covenant.
10.2. Non-Solicitation. During the period of actual employment, and
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one (1) year thereafter, the Employee shall not, except on behalf of or with the
prior written consent of the Company, (a) solicit, directly or indirectly, any
customer, client, tenant or account whose identity the Employee obtained through
association with the Company, regardless of the geographical location of such
customer, client, tenant or account, or (b) directly or indirectly,
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entice or induce, or attempt to entice or induce, any employee of the Company to
leave such employ, or employ any such person in any business similar to or in
competition with that of the Company. The Employee hereby acknowledges and
agrees that the provisions set forth in this subsection 10.2 constitute a
reasonable restriction on his ability to compete with the Company. During the 1
(one) year period following employment, the following shall be specifically
excluded form this paragraph: attorneys, brokers, private real estate investors
and third party service providers.
10.3. Saving Provision. The parties hereto agree that, in the event a
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court of competent jurisdiction shall determine that the geographical or
durational elements of this covenant are unenforceable, such determination shall
not render the entire covenant unenforceable. Rather, the excessive aspects of
the covenant shall be reduced to the threshold which is enforceable, and the
remaining aspects shall not be affected thereby.
10.4. Equitable Relief. The Employee acknowledges that the extent of
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damages to the Company from a breach of sections 8, 9 and 10 of this Agreement
would not be readily quantifiable or ascertainable, that monetary damages would
be inadequate to make the Company whole in case of such a breach, and that there
is not and would not be an adequate remedy at law for such a breach. Therefore,
the Employee specifically agrees that the Company is entitled to injunctive or
other equitable relief from a breach of sections 8, 9 and 10 of this Agreement,
and hereby waives and covenants not to assert against a prayer for such relief
that there exists an adequate remedy at law, in monetary damages or otherwise.
11. Indemnification.
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11.1. Right to Indemnification. The Company shall indemnify, and on
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request shall advance funds to, the Employee for expenses (including attorneys'
fees), judgments, penalties, fines and amounts paid in settlement if the
Employee becomes a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, investigative or otherwise, by reason of the fact that
the Employee (a) is or was an employee of the Company, or (b) is or was serving
at the request of the Company as a director, officer, partner, trustee, employee
or agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, in the manner and to the fullest extent
permitted by applicable law; provided, however, that the Company shall not
indemnify the Employee (a) in any proceeding by or in the right of the Company
against such Employee wherein the Employee shall have been adjudged to be liable
to the Company; (b) in any proceeding charging improper personal benefit to the
Employee, whether or not involving action in the Employee's official capacity,
in which the Employee was adjudged to be liable on the basis that personal
benefit was improperly received; or (c) it is established that (i) the act or
omission of the Employee was material to the matter giving rise to the
proceeding and the act or omission was committed in bad faith or was the result
of active and deliberate dishonesty, (ii) the indemnitee actually received an
improper personal benefit in money, property or services, or (iii) in the case
of any criminal proceeding, the Employee had reasonable cause to believe the act
or omission was unlawful. If applicable law is hereafter amended, any such
amendment shall apply to this
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Agreement only to the extent mandated by law and only as to the activities of
the Employee subject to indemnification pursuant to this subsection 11.1 which
occur subsequent to the effective date of such amendment.
11.2. Non-Exclusivity of Rights. The indemnification and advancement
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of expenses provided by, or granted pursuant to, this section 11 shall not be
deemed exclusive of any other rights to which the Employee may be entitled by
law, the Company's Articles of Incorporation or Bylaws, an agreement with the
Company, or a resolution of the Board of Directors or of the Company's
shareholders. Any repeal or modification of the provisions of this section 11
shall be prospective only and shall not adversely affect any right or protection
set forth herein in favor of the Employee at the time of such repeal or
modification.
11.3. Insurance. The Company may, to the fullest extent permitted by
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law, purchase and maintain insurance, at its expense, to protect itself and the
Employee against any liability asserted against the Employee and incurred by the
Employee in any such capacity, or arising out of the Employee's duties
hereunder, whether or not the Company would have the power to indemnify the
Employee against such liability under the provisions of this section 11, the
General Corporation Law of the State of Maryland or otherwise.
11.4. Saving Provision. If this section 11 or any portion thereof
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shall be invalidated on any ground by any court of competent jurisdiction, then
the Company shall nevertheless indemnify the Employee as to expenses (including
attorneys' fees), judgments, fines, penalties and amounts paid in settlement
with respect to any actual or threatened action, suit or proceeding, whether
civil, criminal, administrative, investigative or otherwise, to the fullest
extent permitted by any applicable portion of this section 11 which shall not
have been invalidated, by the General Corporation Law of the State of Maryland
or by any other applicable law.
12. Entire Agreement.
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This Agreement contains the complete agreement concerning the
employment arrangement between the parties and shall, as of the Effective Date,
supersede all other agreements or arrangements between the parties with regard
to the subject matter hereof.
13. Binding Agreement.
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This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, legal representatives, successors and
assigns. The obligations of the Company under this Agreement shall not be
terminated by reason of any liquidation, dissolution, bankruptcy, cessation of
business or similar event relating to the Company. This Agreement shall not be
terminated by reason of any merger, consolidation or reorganization of the
Company, but shall be binding upon and inure to the benefit of the surviving or
resulting entity.
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14. Modification.
------------
No waiver or modification of this Agreement or of any covenant,
condition, or limitation herein contained shall be valid unless in writing and
duly executed by the party to be charged therewith and no evidence of any waiver
or modification shall be offered or received in evidence of any proceeding,
arbitration, or litigation between the parties hereto arising out of or
affecting this Agreement, or the rights or obligations of the parties
thereunder, unless such waiver or modification is in writing, duly executed as
aforesaid.
15. Severability.
------------
All agreements and covenants contained herein are severable, and in
the event any of them shall be held to be invalid or unenforceable by any court
of competent jurisdiction, this Agreement shall be interpreted as if such
invalid agreements or covenants were not contained herein.
16. Manner of Giving Notice.
-----------------------
All notices, requests and demands to or upon the respective parties
hereto shall be sent by hand, certified mail, overnight air courier service, or
telecopier (if within a reasonable time a permanent copy is given by any of the
other methods described above), in each case with all applicable charges paid or
otherwise provided for, addressed as follows, or to such other address as may
hereafter be designated in writing by the respective parties hereto:
To Company:
----------
JDN Realty Corporation
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Employee:
-----------
Xxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Such notices, requests and demands shall be deemed to have been given or made on
the date of delivery if delivered by hand or by telecopy and on the next
following date if sent by mail or by air courier service.
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17. Remedies.
--------
In the event of a breach of this Agreement, the non-breaching party
shall be entitled to such legal and equitable relief as may be provided by law,
and shall further be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred in enforcing the non-breaching party's
rights hereunder.
18. Headings.
--------
The headings have been inserted for convenience only and shall not be
deemed to limit or otherwise affect any of the provisions of this Agreement.
19. Choice of Law.
-------------
It is the intention of the parties hereto that this Agreement and the
performance hereunder be construed in accordance with, under and pursuant to the
laws of the State of Maryland without regard to the jurisdiction in which any
action or special proceeding may be instituted.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first stated above.
JDN Realty Corporation
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Xxxxx Xxxxxx, Chief Executive Officer
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
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