Exhibit 10.31
EXECUTIVE EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is entered into effective as
of the 1st day of January, 2006 by and between Xxxxxx, Inc. (the "Employer" or
the "Company"), a New Jersey corporation which maintains its principal executive
offices at 0000 00xx Xxxxxx, Xxxxx Xxx, Xxxx Xxxxx, Xxxxxxx 00000, and Xxxxxxx
X. Xxxxxxxxx (the "Executive"), an individual residing at 000 Xxxxxx Xxxxx, Xxxx
Xxxxx, Xxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, the Company is engaged in the acquisition, design, development,
construction and marketing of residential real estate including, without
limitation, residential housing units; and
WHEREAS, the Executive has had extensive experience in the field of
residential and commercial real estate development and other related areas in a
management capacity and has served as Chairman, President and Chief Executive
Officer of the Company since 2003; and
WHEREAS, the Employer desires to provide for the continued employment of
the Executive as the President and Chief Executive Officer of the Company and
for the Executive to serve as the Chairman of the Board of Directors of the
Company (the "Board") pursuant to the terms and conditions of this Agreement
since the Employer believes that the Executive's business and technical
experience, skill, acumen, and expertise will enhance the business and improve
the profitability of the Company.
NOW, THEREFORE, in consideration of the representations, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. EMPLOYMENT.
1.1. TERM. The term of this Agreement shall commence on
January 1, 2006 and end on December 31, 2006 (the "Term"), unless further
extended or sooner terminated as hereinafter provided.
1.2. POWERS, DUTIES AND RESPONSIBILITIES. For the Term of
this Agreement, the Employer hereby employs the Executive, and the Executive
hereby accepts employment with the Employer, to render service as President,
Chief Executive Officer and Chairman of the Board of the Company, with such
powers, duties and responsibilities consistent with the position of President,
Chief Executive Officer and Chairman of the Board as provided for in the
Employer's By-laws and as otherwise may from time to time be determined by the
Board and subject to the rights of the shareholders of the Company. The
Executive agrees to devote the necessary working time to the Employer as shall
be reasonably required to accomplish the Company's
goals and to diligently perform all duties and fulfill all responsibilities
incident to his employment in a businesslike and efficient manner. The Executive
shall be responsible for each facet of the Employer's business operations, and
the Executive will report directly to the Employer's Board.
1.3. The Executive agrees that he will not become involved in
any activity outside of the business of the Company that would materially
interfere with the performance of his duties hereunder or any activity that
would be inimical to or contrary to the best interests of the Employer.
2. COMPENSATION AND BENEFITS.
2.1. SALARY. During the period of the Executive's employment
hereunder, the Executive shall receive a salary of One Hundred Thousand Dollars
($100,000) per annum paid in accordance with the Employer's normal payroll
practices (the "Base Compensation"). The payment of such Base Compensation to
the Executive shall not prevent the Executive from participating in any other
compensation or benefit plan provided by the Employer, unless excluded by the
terms of any such plan. No other compensation, benefit, or payment made by the
Employer hereunder shall in any way limit or reduce the obligation of the
Employer to pay the Executive's Base Compensation hereunder. Base Compensation
as defined and used herein shall include any increase thereto pursuant to an
action of the Board or the Compensation Committee of the Board (the
"Compensation Committee").
2.2. BONUS COMPENSATION. The Executive shall be eligible to
receive bonus compensation pursuant to the Executive's participation in the
Xxxxxx, Inc. Incentive Compensation Plan ("Incentive Plan"). The Executive shall
be eligible to participate in any other bonus compensation plan or arrangement
otherwise provided by the Employer to senior level executives of the Company.
2.3. BENEFIT PLANS. The Executive will be entitled to
participate in all Employer benefit plans available, or hereafter made
available, to senior level executives of the Employer, including the Company's
severance policy for senior executives as such policy may be in effect from time
to time. The Executive will be eligible to participate in any existing stock
option plan or any stock option plan or arrangement hereafter adopted by the
Employer. Except as provided herein or required by the terms of an Employer
sponsored benefit plan, nothing paid to the Executive under any such plan or
arrangement presently in effect or made available in the future shall be deemed
to be in lieu of the Base Compensation payable to the Executive pursuant to
Section 2.1 of this Agreement.
2.4. PERQUISITES. The Executive shall be entitled to receive
any perquisites available, or hereafter made available, to senior level
executives of the Company.
2.5. VACATION. The Executive shall be entitled to fifteen
(15) days paid vacation per annum.
3. EMPLOYMENT PERIOD. The Executive's employment with the Employer
shall at all times be "at-will" and may continue until either Employer or
Executive have notified the other of the termination of employment with
Employer, which termination may be for any lawful reason or no reason at all, at
any time, with or without notice.
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4. COVENANTS OF THE EXECUTIVE.
4.1. COVENANTS AGAINST COMPETITION. The Executive
acknowledges that (i) the principal business of the Employer is the acquisition,
design, development, construction and marketing of residential real estate
including residential housing units; (ii) the Employer's business is conducted
in the State of Florida; (iii) the Executive's work for the Employer will bring
him and will continue to bring him into close contact with many trade secrets of
and confidential information concerning the Employer, its subsidiaries and its
affiliates which are not readily available to the public; and (iv) the covenants
in this Section 4 are essential to protect the business and goodwill of the
Employer. In order to induce the Employer to enter into this Agreement, the
Executive covenants and agrees that:
4.1.1. NON-COMPETE. For the Term of this Agreement, and
for a period of twelve (12) months following termination of the
Executive's employment (the "Restricted Period") the Executive shall
not, in the State of Florida: (i) compete with the Employer by engaging
in the Employer's business of acquiring, designing, developing,
constructing and marketing residential real estate, including, without
limitation, residential housing units; or (ii) become interested in or
engaged in the Employer's business of acquiring, designing, developing,
constructing and marketing residential real estate, directly or
indirectly, as an individual, partner, shareholder, officer, director,
principal, agent, senior level management employee, trustee, consultant
or in any other relationship or capacity.
4.1.2. CORPORATE OPPORTUNITIES. During the Restricted
Period, the Executive shall not acquire any ownership, beneficial or
pecuniary interest in, or become a director, officer or significant
equity holder of, any entity that acquires any ownership, beneficial or
pecuniary interest in, any residential real estate development project
of the Employer or any of its subsidiaries or other affiliated entities.
4.1.3. CONFIDENTIAL INFORMATION. During and after the
Restricted Period, the Executive shall keep secret and retain in
strictest confidence, and shall not use for the benefit of himself or
others, except in the course of performing his duties for the Employer,
all proprietary and/or confidential matters of the Employer, its
subsidiaries and its affiliates, including, without limitation, details
of contracts, pricing policies, operational methods, marketing plans and
strategies, real estate acquisition, development and design techniques,
projects and plans, business acquisition plans, new personnel
acquisition plans, and other business affairs of the Employer and its
subsidiaries and other affiliated entities learned by the Executive
heretofore or hereafter; provided, however, the Executive shall not be
restricted with respect to use of confidential information that (i) was
rightfully known to Executive prior to disclosure by Employer; (ii) is
or becomes public knowledge through no action or default on the part of
the Executive; (iii) is disclosed to the Executive by a third party,
provided that the third party has the lawful right to make such
disclosure; (iv) is approved by the Board in writing for disclosure to
specified third parties; or (v) is required to be disclosed by Executive
pursuant to a court order.
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4.1.4. NONSOLICITATION OF EMPLOYEES. During the
Restricted Period, the Executive shall not, directly or indirectly,
hire, solicit or encourage any employee to leave the employment of the
Employer or any of its subsidiaries or other affiliated entities.
4.1.5. PROPERTY OF THE EMPLOYER. All memoranda, notes,
lists, records and other documents and all copies thereof, including,
but not limited to, such items stored in computer memories, on microfilm
or by any other means, made or compiled by or on behalf of the
Executive, or made available to the Executive, concerning the business
of the Employer or any of its subsidiaries or other affiliated entities
are and shall be the Employer's property and shall be delivered to the
Employer promptly upon the termination of the Executive's employment
with the Employer or at any other time on request. The Executive shall
be entitled to copies of any of the materials referenced herein, at no
cost and expense to the Executive, to the extent necessary to (i) defend
any lawsuit; (ii) respond to any inquiry from any court or governmental
agency related to such materials; (iii) respond to any tax audits; or
(iv) to respond to any other inquiries which require Executive to have
access to such materials.
4.2. RIGHTS AND REMEDIES UPON BREACH. If the Executive
breaches, or threatens to commit a breach, of any of the provisions of Section
4.1, the Employer shall have the rights and remedies set forth in this Section
4.2 of this Agreement, each of which shall be independent of the other and
severally enforceable, and all of which rights and remedies shall be in addition
to, and not in lieu of, any other rights and remedies available to the Employer
in law or in equity.
4.2.1. SPECIFIC PERFORMANCE. The Employer shall have
the right and remedy to have the covenants of this Section 4
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to the Employer and that money damages will not
provide adequate remedy to the Employer.
4.2.2. ACCOUNTING. The Employer shall have the right
and remedy to require the Executive to account for and pay over to the
Employer all compensation, profits, monies, accruals, increments or
other benefits (collectively, the "Benefits") derived or received by the
Executive as the result of any transactions constituting a breach of any
of the covenants of Section 4, and the Executive shall account for and
pay over such Benefits to the Employer.
4.3. SEVERABILITY OF COVENANTS. If any court determines that
any of the covenants of Section 4, or any part thereof, is invalid or
unenforceable, the remainder of the covenants shall not thereby be affected and
shall be given full effect, without regard to the invalid portions.
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4.4. BLUE-PENCILING. If any court determines that any of the
covenants of Section 4, or any part thereof, is unenforceable because of the
duration or geographic scope of such provision, such court shall have the power
to reduce the duration or scope of such provision, as the case may be, and, in
its reduced form, such provision shall then be enforceable and shall be
enforced.
5. BINDING EFFECT. The respective obligations of the Employer and
the Executive under this Agreement shall inure to the benefit of and be binding
upon the Employer and the Executive and the respective successors and assigns of
the Employer. This Agreement shall be assignable by the Employer but not by the
Executive. As used herein, the term "successors and assigns" shall include any
entity which acquires all or substantially all of the assets and businesses of
Employer whether by purchase, merger, consolidation or otherwise.
6. APPLICABLE LAW. The Agreement shall be interpreted and construed
in accordance with the laws of the State of New Jersey.
7. INDEMNIFICATION. The Employer will defend and indemnify the
Executive as provided for in the Employer's By-laws, regardless of any
subsequent amendment, which may restrict or limit the Executive's right to
indemnification as set forth in the By-laws, or repeal of the relevant By-law
provisions. Further, the Executive shall be covered by any directors' and
officers' insurance policy (the "D&O Policy") provided by the Employer for its
officers and directors to the fullest extent that coverage pursuant to any such
D&O Policy is provided for the Employer's other officers and directors.
Following the termination of the Executive's employment with the Employer, the
Executive shall be covered by any then existing or subsequently obtained D&O
Policy to the same extent that any such D&O Policy provides coverage officers or
directors of the Employer. Following termination of his employment with the
Employer, the Executive will be entitled to request and obtain an endorsement or
other customary form of confirmation from the carrier of any such D&O Policy
that the Executive is covered as a former officer or director of the Employer.
8. REPRESENTATIONS AND WARRANTIES OF THE EMPLOYER. The Employer
represents and warrants that the execution of this Agreement by the Employer has
been duly authorized by all required resolutions of its Board and/or Board
committees.
9. NOTICES. For the purposes of this Agreement, notices, demands
and all other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly issued when hand delivered, or when
dispatched to any overnight delivery service, or when deposited for mailing in a
United States mailbox or at a United States Post Office if sent postage prepaid
and return receipt requested by United States Certified or Registered Mail.
If to the Executive:
Xxxxxxx X. Xxxxxxxxx
000 Xxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
If the Employer:
Xxxxxx, Inc.
0000 00xx Xxxxxx, Xxxxx Xxx
Xxxx Xxxxx, Xxxxxxx 00000
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or to such other address as any party may have furnished to the other in writing
in accordance herewith.
10. ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding between the Employer and Executive with respect to the employment
of the Executive by the Employer, and it supersedes all prior and
contemporaneous, written, oral, express and implied communications, agreements
and understandings between the Executive and the Employer, its subsidiaries and
its other affiliated entities. In the event that any term, or condition or
provisions of this Agreement varies from, or is in any way dissimilar to or a
conflict with, any term, condition or provision of any of the Employer's benefit
plans or any other agreement between the Employer and the Executive, the terms,
conditions and provisions of this Agreement will control.
11. AMENDMENT. No provision of this Agreement may be amended,
modified, waived or discharged unless such waiver, amendment, modification or
discharge is approved by the Board, or a committee of the Board having
appropriate authority, and agreed to in writing signed by both the Executive and
the Employer.
12. SEVERABILITY. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement, which shall remain in
full force and effect.
13. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which together constitute
one and the same Agreement.
14. EFFECTIVE DATE. The parties hereto agree that this Agreement is
effective and legally binding as of January 1, 2006.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
this 9th day of January 2006.
WITNESS:
_________________________ _______________________________________________
Xxxxxxx X. Xxxxxxxxx
WITNESS: XXXXXX, INC.
_________________________ By:_______________________________________________
Xxxxx X. Xxxxxx
Chief Financial Officer & Senior Vice President
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