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EXHIBIT 10(b)(1)
EMPLOYMENT AGREEMENT
This is an agreement (the "Agreement") between Xxxxx Equity, Inc. (the
"Company"), a Florida corporation with its principal place of business at
Jacksonville, Florida, and Xxxxxx Xxxxxx (the "Executive"), effective as of
February 17, 2000 (the "Effective Date").
WHEREAS, the operations of the Company require direction and
leadership in a variety of areas;
WHEREAS, the Executive has experience and expertise, as a senior
executive, that qualify him to provide that direction and leadership, and the
Company therefore wishes to employ him as its chief financial officer, and he
wishes to accept such employment.
NOW, THEREFORE, the parties agree as follows:
1. Employment; Term. The Company hereby agrees to employ the
Executive, and the Executive hereby agrees to enter the employ of the Company
in accordance with the terms and conditions set forth herein, for a term (the
"Term of Employment"), commencing on March 1, 2000 and terminating, unless
otherwise terminated earlier in accordance with Section 4 hereof, on the third
anniversary of such date (the "Original Employment Term"), provided that the
Employment Term shall automatically be extended, subject to earlier termination
as provided in Section 4 hereof, for successive one year periods (each an
"Additional Term") unless at least ninety (90) days prior to the end of the
Original Employment Term or the then Additional Term, the Company or the
Executive has notified the other in writing that the Term of Employment shall
terminate at the end of the then current term.
2. Capacity and Performance. During the Term of Employment:
(a) the Executive shall serve the Company on a
substantially full-time basis as its chief financial officer at the Company's
offices in Jacksonville and Boca Raton, Florida;
(b) the Executive shall have such duties, authorities
and responsibilities as commensurate with chief financial officers of public
entities of similar size, and shall perform such other duties, authorities and
responsibilities as may be designated from time to time by the Board of
Directors of the Company (the "Board") commensurate with the position of chief
financial officer; and
(c) the Executive shall devote substantially all of his
business time, attention and efforts to the performance of his duties
hereunder, provided the foregoing will not prevent the Executive from
participating in charitable, community or industry affairs, from managing his
and his family's personal investments, and assisting with the liquidation of
the Xxxxxxx Realty Trust, to the extent that the aforementioned activities do
not materially interfere with the performance of the Executive's duties
hereunder.
3. Compensation and Benefits.
(a) Base Salary. During the Term of Employment, the
Company shall pay the Executive base salary ("Base Salary") at the rate of
$200,000 per year, prorated for any partial period. All Base Salary shall be
payable in accordance with the payroll practices of the
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Company for its senior executives and shall be subject to increase from time to
time by the Board (or its Compensation Committee) in its sole discretion.
(b) Bonus. The Executive shall be eligible for year-end
annual bonuses in an amount of at least $125,000 (the "Target Bonus"). Payment
of the Target Bonus to the Executive shall be within the total discretion of
the Compensation Committee of the Board and shall be based upon the Company's
performance.
(c) Stock Purchase Loan. The Company shall provide the
Executive a loan to purchase up to 150,000 shares of the Company's common
stock, $.01 par value (the "Common Stock") subject in all respects to the terms
and conditions of agreements, in the form and substance substantially similar
to the agreements attached as Exhibit A hereto.
(d) Option Grant. Executive will be entitled, pursuant
to the grant made to Executive on February 17, 2000, to receive from the
Company, a stock option (the "Stock Option") to purchase a total of 300,000
shares of Common Stock, with a per share exercise price equal to the fair
market value of a share of the Company's Common Stock as of February 17, 2000.
The Stock Option shall be for a term of ten years. In the case of (i) the
termination of Executive's employment (A) by the Company without Cause or by
Executive for Good Reason (as such terms are defined in Section 4 hereof) or
(B) pursuant to a notice by either the Company or the Executive to the other of
a non-renewal of the Term of Employment in accordance with Section 1 hereof,
(ii) the Executive's death or Disability (as defined in Section 4 hereof) or
(iii) a Change of Control of the Company (as defined in Section 7.2(b) of the
Company's Equity and Cash Incentive Plan (the "1998 Plan"), the Stock Option
and any other Company stock option then held by Executive shall become
immediately 100% vested (provided, that in the case of a termination pursuant
to clause (i)(B), such vesting shall be postponed until the last day of the
then Term of Employment) and shall remain exercisable for the remainder of
their respective terms. Subject to accelerated vesting as set forth in this
Agreement, the Stock Option shall vest and become exercisable as to one-third
of the shares originally subject to the Stock Option on each anniversary of the
Effective Date, so as to be 100% vested on the third anniversary thereof,
conditioned upon Executive's continued employment with the Company as of each
vesting date. The Stock Option (and all other options for shares of Common
Stock issued to Executive) shall be adjusted to reflect any corporate event or
transaction with respect to the Company as specified in Section 2(b) of the
stock option agreement attached as Exhibit A hereto (the "Option Agreement").
The Company shall file and maintain a Form S-8 with regard to the Option and
shall file a form S-3 as reasonably requested by the Executive with respect to
any shares of Common Stock issued upon exercise of the Option. Subject to the
foregoing, the Stock Option shall in all respects be subject to the terms,
definitions and provisions of the Option Agreement.
(e) Vacations. During the Term of Employment the
Executive shall be entitled to five weeks of vacation per year, prorated for
partial calendar years, to be taken at such times and intervals as he wishes,
subject to the reasonable business needs of the Company. The Executive shall be
entitled to cash compensation for vacation time not taken only to the extent
approved by the Board.
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(f) Other Benefits. During the Term of Employment the
Executive shall be entitled to participate in all employee benefit plans,
programs and arrangements (including insurance plans) generally provided to
comparable senior officers of the Company. The Executive's participation shall
be subject to (i) the terms of the applicable plan documents and (ii) generally
applicable Company policies. The Company may alter, modify, supplement or
delete its employee benefit plans at any time as it sees fit, without recourse
by the Executive.
(g) Business Expenses. The Company shall pay or
reimburse the Executive for all reasonable, customary business expenses
incurred or paid by the Executive in the performance of the duties and
responsibilities of his position, subject to any restrictions on such expenses
set by the Board or in Company policies and to such reasonable substantiation
and documentation as may be required by the Company.
(h) Travel Between Company Offices. The Company agrees
to (i) reimburse the Executive for the expenses, including, without limitation,
travel and lodging costs, incurred by the Executive for travel between the
Company's offices and (ii) gross-up the Executive for any taxes imposed on such
reimbursements.
4. Termination of Employment.
(a) Death. In the event of the Executive's death (i) the
Stock Option and all other stock option or equity grants to Executive shall
vest in full upon the date of death so as to become fully exercisable and (ii)
the Company shall promptly pay and provide Executive's estate (A) any unpaid
Base Salary and accrued vacation through the date of termination, (B) any
unpaid bonus accrued with respect to the fiscal year ending on or preceding the
date of termination, (C) reimbursement for any unreimbursed expenses incurred
through the date of termination and (D) all other payments, benefits or fringe
benefits to which Executive has earned at the time of termination in accordance
with, the terms of any applicable compensation arrangement or benefit, equity
or fringe benefit plan or program or grant (collectively, items (A) through (D)
hereinafter referred to as "Accrued Benefits") and (E) an amount equal to the
Target Bonus amount for the year of termination, multiplied by a fraction, the
numerator of which is the number of days in the bonus period prior to
Executive's termination and the denominator of which is the number of days in
the bonus period (the "Prorated Bonus").
(b) Disability.
(i) If by reason of the same or related
physical or mental illness or incapacity, the Executive is unable to carry out
his material duties pursuant to this Agreement for more than one hundred eighty
(180) consecutive days, the Company may terminate Executive's employment for
Disability. A termination for Disability hereunder shall not be effective if
Executive returns to the full time performance of his material duties within
such thirty (30) day period. Such termination shall be upon thirty (30) days
written notice at any time thereafter while Executive consecutively continues
to be unable to carry out his duties as a result of the same or related
physical or mental illness or incapacity. The Executive may, and at the request
of the Company shall, submit to a medical examination by a physician selected
by the Company, to whom the Executive or his duly appointed guardian has no
reasonable objection, to determine whether the Executive is disabled. Such
determination shall be conclusive. If the Executive fails
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to submit to such medical examination, the Company's determination of the
Executive's disability shall be conclusive.
(ii) If Executive's employment is terminated by
reason of Executive's Disability, Executive shall be entitled to receive the
payments and benefits to which his representatives would be entitled under
Section 4(a) hereof in the event of a termination of employment by reason of
his death.
(c) Termination by the Company for Cause.
(i) The Company may terminate the Executive's
employment hereunder for Cause at any time pursuant to a Notice of Termination
for Cause (as defined below). For purposes of this Agreement, Cause shall mean
(A) willful misconduct by Executive with regard to the Company that has a
material adverse effect on the Company or (B) the Executive being convicted of
a felony (other than a felony involving a traffic violation or as a result of
vicarious liability). For purposes of this paragraph, no act, or failure to
act, on Executive's part shall be considered "willful" unless done or omitted
to be done, by him not in good faith and without reasonable belief that his
action or omission was in the best interests of the Company. Upon termination
of the Executive's employment for Cause, the Company shall have no further
obligations under this Agreement other than to pay to the Executive the Accrued
Benefits.
(ii) For purposes of this Agreement, a "Notice
of Termination for Cause" shall mean a notice that shall indicate the specific
termination provision in Section 4(c) relied upon and shall set forth in
reasonable detail the facts and circumstances which provide for a basis for
termination for Cause. Further, a Notification of Termination for Cause shall
be required to include a copy of a resolution duly adopted by at least
two-thirds (_) of the entire membership of the Board at a meeting of the Board
which was called for the purpose of considering such termination and which
Executive and his representative had the right to attend and address the Board,
finding that, in the good faith of the Board, Executive engaged in conduct set
forth in the definition of Cause herein and specifying the particulars thereof
in reasonable detail. The date of termination for a termination for Cause shall
be the date indicated in the Notice of Termination for Cause. Any purported
termination for Cause that is held by a court not to have been based on the
grounds set forth in this Section 4(c) or not to have followed the procedures
set forth in this Agreement shall be deemed a termination by the Company
without Cause.
(d) Termination by Company Without Cause or Termination
by Executive for Good Reason.
(i) The Company may terminate the Executive's
employment other than for Cause at any time upon written notice. The Executive
may terminate employment for Good Reason pursuant to clause (ii) below. In the
event of either such termination of the Executive's employment, the Executive
shall be entitled to payment of the Accrued Benefits and the following:
(A) The Company shall pay the
Executive as soon as practicable following the termination a lump sum cash
payment equal to the product of (x) and
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(y) where (x) equals 2, or if greater, the number of years (and parts thereof)
remaining in the Term of Employment and where (y) equals the sum (i) of the
Executive's annual Base Salary at the time of termination (ignoring any
reduction in rate that constitutes Good Reason hereunder) and (ii) the Target
Bonus for the year of termination;
(B) The Company shall pay the
Executive the Prorata Bonus as soon as practicable following the termination;
(C) The Stock Option and all other
stock option or equity grants to Executive shall vest in full so as to become
fully exercisable effective as of the date of termination; and
(D) Continued participation in the
Company's medical and life insurance arrangements during the remainder of the
Term of Employment (but for a period of no less than two (2) years) at no cost
to the Executive; provided that to the extent continued participation in such
plans are unavailable, the Company shall make a lump-sum payment to the
Executive in the amount such that the Executive can purchase such benefits
separately at no after-tax cost to Executive.
(ii) For purposes of this Agreement, the
Executive may terminate employment for Good Reason by written notice given
within ninety (90) days after the occurrence of the event that constitutes Good
Reason, unless such circumstances are fully corrected prior to the date of
termination specified in the Notice of Termination for Good Reason (as defined
below). For purposes of this Agreement, "Good Reason" shall mean the occurrence
or failure to cause the occurrence, as the case may be, without Executive's
express written consent, of any of the following circumstances: (i) any
material diminution of Executive's positions, duties or responsibilities
hereunder (except in each case in connection with the termination of
Executive's employment for Cause or Disability or as a result of Executive's
death, or temporarily as a result of Executive's illness or other absence), or,
the assignment to Executive of duties or responsibilities that are inconsistent
with Executive's then position; (ii) removal of the Executive from position of
chief financial officer of the Company; (iii) a relocation of the Company's
executive office in Boca Raton or Jacksonville to a location more than
thirty-five (35) miles from its current location or more than thirty-five (35)
miles further from the Executive's residence at the time of relocation; (iv)
any material breach by the Company of any provision of this Agreement; (v)
Executive's removal from or failure to be elected or reelected to the Board; or
(vi) failure of any successor to the Company (whether direct or indirect and
whether by merger, acquisition, consolidation or otherwise) to assume in a
writing delivered to Executive upon the assignee becoming such, the obligations
of the Company hereunder. For purposes of this Agreement, a "Notice of
Termination for Good Reason" shall mean a notice that shall indicate the
specific termination provision in Section 4(d)(ii) relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination for Good Reason. The failure by Executive to set forth in
the Notice of Termination for Good Reason any facts or circumstances which
contribute to the showing of Good Reason shall not waive any right of Executive
hereunder or preclude Executive from asserting such fact or circumstance in
enforcing his rights hereunder. The Notice of Termination for Good Reason shall
provide for a date of termination not less than ten (10) nor more than sixty
(60) days after the date such Notice of Termination for Good Reason is given,
provided that in the case of the
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events set forth in Sections 4(d)(i) or (ii) or the date may be five (5) days
after the giving of such notice.
(f) Without Good Reason. Executive may terminate his
employment at any time without Good Reason by written notice to the Company. In
the event that Executive's employment with the Company is terminated during the
Term of Employment by Executive without Good Reason, Executive shall not be
entitled to any additional payments or benefits hereunder, other than Accrued
Benefits; provided, however, that any then vested Stock Option and any other
Company stock option, shall remain exercisable until the earlier of ten years
from the employment termination date or the expiration of the option.
(g) In the event of any termination of employment
hereunder, Executive shall be under no obligation to seek other employment and
there shall be no offset against any amounts due Executive under this Agreement
on account of any remuneration attributable to any subsequent employment that
Executive may obtain. The amounts payable hereunder shall not be subject to
setoff, counterclaim, recoupment, defense or other right which the Company may
have against the Executive or others, except upon obtaining by the Company of a
final unappealable judgment against Executive.
(h) Gross-up Payment. The payments and benefits called
for by this agreement are not in any way conditioned on a change of ownership
or control of the Company. The Company intends such payments and benefits to be
reasonable compensation for services rendered by the Executive, and intends
that the Executive receive the full economic benefit of such payments and
benefits. Therefore, in the event that it is determined that any payment or
benefit provided by the Company to or for the benefit of Executive, either
under this Agreement or otherwise, will be subject to the excise tax imposed by
section 4999 of the Internal Revenue Code or any successor provision ("section
4999"), the Company will, prior to the date on which any amount of the excise
tax must be paid or withheld, make an additional lump-sum payment (the
"gross-up payment") to Executive. The gross-up payment will be sufficient,
after giving effect to all federal, state and other taxes and charges
(including interest and penalties, if any) with respect to the gross-up
payment, to make Executive whole for all taxes (including withholding taxes)
and any associated interest and penalties, imposed under or as a result of
section 4999.
Determinations under this Section 4(h) will be made by the
Company's independent auditors unless Executive has reasonable objections to
the use of that firm, in which case the determinations will be made by a
comparable firm chosen by Executive after consultation with the Company (the
firm making the determinations to be referred to as the "Firm"). The
determinations of the Firm will be binding upon the Company and Executive
except as the determinations are established in resolution (including by
settlement) of a controversy with the Internal Revenue Service to have been
incorrect. All fees and expenses of the Firm will be paid by the Company.
If the Internal Revenue Service asserts a claim that, if
successful, would require the Company to make a gross-up payment or an
additional gross-up payment, the Company and Executive will cooperate fully in
resolving the controversy with the Internal Revenue Service.
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The Company will make or advance such gross-up payments as
are necessary to prevent Executive from having to bear the cost of payments
made to the Internal Revenue Service in the course of, or as a result of, the
controversy. The Firm will determine the amount of such gross-up payments or
advances and will determine after resolution of the controversy whether any
advances must be returned by Executive to the Company. The Company will bear
all expenses of the controversy and will gross Executive up for any additional
taxes that may be imposed upon Executive as a result of its payment of such
expenses.
5. Nondisclosure. During the Term of Employment, the Executive
may become aware of information which is nonpublic, confidential or proprietary
in nature with respect to the Company or with respect to other companies,
persons, entities, ventures or business opportunities in which the Company has,
or, if it were disclosed to the Company, the Company might have, an interest
("Confidential Information"). All Confidential Information will be kept
strictly confidential by the Executive and the Executive shall not: (a) copy,
reproduce, distribute or disclose any Confidential Information to any third
party except in the course of his employment by the Company; (b) use any
Confidential Information for any purpose other than in connection with his
employment by the Company; or (c) use any Confidential Information in any way
that is detrimental to the Company.
Confidential Information shall not include information which: (a) is
or becomes generally available to the public other than by breach by the
Executive of his agreement herein; (b) is disclosed by the Executive, pursuant
to obligations under law, regulation or court order; or (c) was prior to the
Effective Date, or thereafter becomes, known to the Executive on a
nonconfidential basis.
Upon termination of the Executive's employment, he shall immediately
return or destroy all Confidential Information, including all notes, copies,
reproductions, summaries, analyses, or extracts thereof, then in his
possession. Such return or destruction shall not abrogate the continuing
obligations of the Executive under this Agreement.
In the event that the Executive is requested or required (by
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process) to disclose any Confidential
Information, he shall provide the Company with prompt written notice so that it
may seek a protective order or other appropriate remedy. In the event such
protection or other remedy is not obtained, the Executive shall furnish only
that portion of the Confidential Information which he is advised by counsel is
legally required.
The Executive hereby acknowledges that he is aware that the
United States securities laws prohibit any person who has material, nonpublic
information concerning the Company from purchasing or selling securities of the
Company or from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such person is likely
to purchase or sell such securities. The obligations of the Executive stated in
this Section 5 shall, except where expressly limited as to time, continue
without limit as to time and without regard to the employment status of the
Executive.
6. Conflicting Agreements. The Executive hereby represents and
warrants that the execution of this Agreement and the performance of his
obligations hereunder will not breach or be in conflict with any other
agreement to which he is a party or is bound and that he is
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not now subject to any covenants against competition or similar covenants that
would affect the performance of his obligations hereunder. The Executive will
not disclose to or use on behalf of the Company any proprietary information of
a third party without such party's consent.
7. Withholding. All payments made by the Company under this
Agreement shall be reduced by any tax or other amounts required to be withheld
by the Company under applicable law.
8. Cost of Enforcement. The Company shall pay reasonable costs
and expenses (including fees and expenses of counsel) associated with entering
into this agreement and those incurred by the Executive in connection with an
action to enforce his rights under this Agreement in which action the Executive
prevails.
9. Indemnification. The Company shall, to the maximum extent
permitted from time to time under the law of the State of Florida, indemnify
and upon request shall advance expenses to the Executive in the event he is or
was a party or is threatened to be made a party to any threatened, pending or
completed action, suit, proceeding or claim, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was or has
agreed to be a director, officer or employee of the Company or while a
director, officer or employee is or was serving at the request of the Company
as a director, officer, partner, trustee, employee or agent of any corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, against expenses (including attorney's fees
and expenses), judgments, fines, penalties and amounts paid in settlement
incurred in connection with the investigation, preparation to defend or defense
of such action, suit, proceeding or claim; provided, however, that the
foregoing shall not require the Company to indemnify or advance expenses to the
Executive in connection with any action, suit, proceeding, claim or
counterclaim initiated by or on behalf of the Executive. The Executive shall be
deemed to have met the standard of conduct required for such indemnification
unless the contrary shall be established. The provisions of this Section 9
shall be in addition to any right of indemnification to which the Executive may
be entitled under the Company's charter or by-laws, pursuant to any other
contract, or by operation of law.
10. Assignment. Except as provided in this Section 10, neither
the Company nor the Executive may make any assignment of this Agreement or any
interest herein, by operation of law or otherwise, without the prior written
consent of the other. The Company may without the consent of the Executive
assign its rights and obligations under this Agreement to any wholly-owned
subsidiary of the Company or to any corporation or other business entity into
which the Company has merged or with which it has consolidated or which has
acquired substantially all of the Company's assets, provided that no such
assignment shall relieve the Company of its obligations under this Agreement.
This Agreement shall inure to the benefit of and be binding upon the Company
and the Executive, their respective successors, executors, administrators,
heirs and permitted assigns.
11. Entire Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes all prior communications,
agreements and understandings, written or oral, with respect to the subject
matter hereof. The Executive may have other rights
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and obligations under other agreements, insurance policies and plans and
employee benefit and welfare plans of the Company.
12. Amendment. This Agreement may be amended or modified only by
a written instrument signed by the Executive and by an expressly authorized
representative of the Company.
13. Governing Law. This is a Florida contract and shall be
construed and enforced under and be governed in all respects by the laws of the
State of Florida.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Company, by its duly authorized representative, and by the
Executive, as of the date first above written.
XXXXX EQUITY, INC.
By /s/ W. Xxxxxxxx Xxxxxxx
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Name: W. Xxxxxxxx Xxxxxxx
Title: Vice President
EXECUTIVE
/s/ Xxx Xxxxxx
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Xxxxxx Xxxxxx
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