EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THE EMPLOYMENT AGREEMENT (the "Agreement"), made and entered into on
the 15th day of February, 1999, by and between XXXXXXX X. XxXXXXX, XX., an
individual resident of the State of North Carolina (the "Executive"), and SUMMIT
PROPERTIES INC., a Maryland corporation, and SUMMIT MANAGEMENT COMPANY, a
Maryland corporation., (Summit Properties Inc. and Summit Management Company are
referred to herein collectively as the "Company"), is hereby amended and
restated as follows this 24th day of August, 2001;
WITNESSETH:
WHEREAS, the Company desires to employ Executive, and Executive desires
to be employed by the Company on the terms and conditions contained in this
Agreement;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement,
intending to be legally bound, hereby agree as follows:
1.
Employment
Subject to the terms of this Agreement, the Company hereby employs
Executive, and Executive hereby accepts such employment with the Company.
Executive shall serve in the capacity of Co-Chairman of the Board of Directors
of Summit Properties Inc. (the "Board") and shall have the duties, rights and
responsibilities normally associated with such position consistent with the
Bylaws of Summit Properties Inc. together with such other reasonable duties
relating to the operation of the business of the Company and its affiliates as
may be assigned to him from time to time by the Board. Through June 30, 2004
Executive shall devote a portion of his business time, skills and efforts to
rendering services on behalf of the Company and its affiliates in substantially
the same fashion as he has rendered such services to the Company previous to the
date of this Agreement. Executive shall exercise such care as is customarily
required by executives undertaking similar duties for entities similar to the
Company. The Company acknowledges that effective July 1, 2004 Executive shall
determine how much of his time during normal business hours he will devote to
the business and affairs of the Company. The Company further acknowledges that
Executive intends to pursue other business interests during the Term of this
Agreement subject to the restrictions of a non-competition agreement between
Executive and the Company dated as of February 15, 2000 (the "Noncompetition
Agreement").
2.
Compensation; Expenses
2.1 Base Salary. Executive's current Base Salary is Two Hundred
Twenty Thousand dollars ($220,000) per annum and will remain
at this level through December 31, 2001. Effective January 1,
2002, and for the balance of the Term, Executive's Base Salary
shall be reduced to Two Hundred Thousand dollars ($200,000)
per annum unless Executive ceases to be an employee member of
the Board in which case Executive's base salary shall be
reduced to One Hundred Seventy Five
Thousand dollars ($175,000) per annum. The Base Salary, less
all applicable withholding taxes, shall be paid to Executive
in accordance with the payroll procedures in effect with
respect to officers of the Company.
2.2 Incentive Compensation. In addition to the Base Salary payable
to Executive pursuant to Paragraph 2.1 and any special
compensatory arrangements which the Company provides for
Executive, Executive is currently entitled to participate in
any incentive compensation plans in effect with respect to
senior officers of the Company, with the criteria for
Executive's participation in such plans to be established by
the Committee in its sole discretion. Effective January 1,
2002, Executive shall no longer be eligible to participate in
such plans for senior officers with respect to his service on
and after January 1, 2002.
2.3 Stock Options. Executive shall at the discretion of the Board
be entitled to participate in employee stock option plans from
time to time established for the benefit of employees of the
Company in accordance with the terms and conditions of such
plans. Subsequent to January 1, 2002, so long as Executive
remains a member of the Board, the Company shall use
reasonable efforts in recommending to the Board the grant of
options to Executive in such amounts and at such times as
those options received by non-employee members of the Board.
All existing equity based incentives held by Executive shall
remain in place and continue with their current vesting
schedule.
2.4 Expenses. Executive shall be reimbursed for all reasonable
business related expenses incurred by Executive at the request
of or on behalf of the Company.
2.5 Participation in Employee Benefit Plans. Executive shall be
entitled to participate in such medical, dental, disability,
hospitalization, life insurance, profit sharing and other
benefit plans as the Company shall maintain from time to time
for the benefit of executive officers of the Company, on the
terms and subject to the conditions set forth in such plans.
2.6 Office Space and Secretarial and MIS Support. During the Term
of this Agreement, Executive shall have the use of his current
or comparable office space, comparable secretarial and
comparable MIS support at the expense of the Company.
2.7 Vacation. In addition to Company holidays, Executive is
currently entitled to receive such paid vacation time each
year during the term of this Agreement consistent with
vacation policies of the Company for its executive officers.
Said paid vacation time shall initially be twenty days. Any
unused vacation days in any year may not be carried over to
subsequent years, and Executive shall receive no additional
compensation for any unused vacation days.
2.7 Perquisites. Executive shall be entitled to receive such
individual perquisites as are consistent with the Company's
policies applicable to its executive officers until June 30,
2004.
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3.
Term of Employment
3.1 Term. The term of this Agreement shall continue until December
31, 2011 (the "Term"). However, either Company or Executive
may terminate this Agreement, subject to the provisions of
Section 4 below, upon the date twenty (20) business days after
written notice is given to the other party by either the
Company or Executive that the employment relationship shall
terminate. Such termination notice may be given by either
party without cause and for any or no reason.
4.
Compensation upon Termination of Employment
In the event Executive's employment with the Company is terminated; 1)
by the Company or Executive for any reason prior to the expiration of the Term
or, 2) upon expiration of the Term, Executive shall be entitled to receive the
following:
(i) Base Salary. The Company shall continue to pay
Executive's Base Salary for the remainder of the Term
to the extent termination has occurred prior to the
expiration of the Term.
(ii) Stock Options. All stock options and restricted stock
held by Executive shall become fully vested upon his
termination of employment, and subject to the terms
of the Company's Amended and Restated 1994 Stock
Option and Incentive Plan, all such stock options
shall remain outstanding for the remainder of their
original terms.
(iii) Stock Loans. Any loan from the Company to Executive
pursuant to the Company's Employee Loan Plan shall
continue in place for the remainder of its term.
(iv) Employee Benefit Plans. If termination occurs prior
to the end of the Term, Executive and, if applicable,
eligible dependents shall continue to participate in
the Company's health, dental, disability, and life
plans for the remainder of the Term on the same terms
and conditions as an active employee. At the end of
the Term, Executive may elect to continue in the
Company's life insurance plan for his life, and
Executive and eligible dependents may elect to
continue in the Company's health and dental plans
until the last to die of him and his spouse at a cost
no greater than the group rates applicable to active
employees in effect from time to time.
Notwithstanding the foregoing, Executive's
continuation in the foregoing plans is subject to the
ability of the Company to make such coverage
available on a commercially reasonable basis.
(v) Office Space and Secretarial and MIS Support. For the
remainder of his life, Executive shall continue to
have the use of his then current or
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comparable office space, comparable secretarial and
comparable MIS support at the expense of the Company.
5.
Miscellaneous
5.1. Binding Effect. This Agreement shall inure to the benefit of
and shall be binding upon Executive and his executor,
administrator, heirs, personal representative and assigns, and
the Company and its successors and assigns; provided, however,
that Executive shall not be entitled to assign or delegate any
of his rights or obligations hereunder without the prior
written consent of Company; and further provided that the
Company shall not be entitled to assign or delegate any of its
rights or obligations hereunder except to a corporation,
partnership or other business entity that is, directly or
indirectly, controlled by or under common control with Summit
Properties Inc.
5.2. Construction of Agreement. No provision of this Agreement or
any related document shall be construed against or interpreted
to the disadvantage of any party hereto by any court or other
governmental or judicial authority by reason of such party
having or being deemed to have structured or drafted such
provision.
5.3. Amendment; Waiver. Except as otherwise expressly provided in
this Agreement, no amendment, modification or discharge of
this Agreement shall be valid or binding unless set forth in
writing and duly executed by each of the parties hereto. Any
waiver by any party or consent by any party to any variation
from any provision of this Agreement shall be valid only if in
writing and only in the specific instance in which it is
given, and no such waiver or consent shall be construed as a
waiver of any other provision or as a consent with respect to
any similar instance or circumstance.
5.4. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of North
Carolina.
5.5. Survival of Agreements. All covenants and agreements made
herein shall survive the execution and delivery of this
Agreement and the termination of Executive's employment
hereunder for any reason.
5.6. Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
5.7. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be
deemed to be given when delivered personally or mailed first
class, registered or certified mail, postage prepaid, in
either case, addressed as follows:
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(a) If to Executive:
Xxxxxxx X. XxXxxxx, Xx.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
(b) If to the Company, addressed to:
Summit Properties Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
5.8. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same
instrument.
5.9. Entire Agreement. This Agreement, together with the
Non-Competition Agreement dated February 15, 2000, and
Indemnification Agreement dated July 20, 1999, constitute the
entire agreement of the parties with respect to the subject
matter hereof and upon the date first written above, will
supersede and replace all prior agreements, written and oral,
between the parties hereto or with respect to the subject
matter hereof. This Agreement may be modified only by a
written instrument signed by each of the parties hereto.
6.0. Executive Severance Agreement. Effective as of the date of
this Agreement, the Executive Severance Agreement between the
Company and the Executive dated April 2, 1997, shall be
terminated and of no further force or effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SUMMIT PROPERTIES INC.
By: /S/ Xxxxxx X. XxXxxxx
---------------------
Name: Xxxxxx X. XxXxxxx
Title: President
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SUMMIT MANAGEMENT COMPANY
By: /S/ Xxxxxx X. XxXxxxx
----------------------
Name: Xxxxxx X. XxXxxxx
Title: Vice President
Collectively, the "Company"
/S/ Xxxxxxx X. XxXxxxx, Xx. [SEAL]
---------------------------
Xxxxxxx X. XxXxxxx, Xx.
"Executive"
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