EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made as of July 20,
1998 by and between InterOffice (Holdings) Corporation, a Virginia corporation;
InterOffice Sacramento, LLC, a Delaware limited liability company (said entities
being referred to, respectively as "Holdings" and "Sacramento LLC" and jointly
as the "Company") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual with an address at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Executive").
W I T N E S S E T H:
A. The Company, together with its affiliated companies, is engaged in the
Business (as defined below);
B. Holdings and Sacramento LLC executed an Asset Purchase Agreement of
even date herewith pursuant to which Sacramento LLC (of which Holdings is the
sole member) acquired certain assets (the "Acquisition") of Xebec Management
Services, Inc. ("Xebec") and XMS Greenhaven, Incorporated ("XMS");
C. The Executive holds a substantial stock interest in Xebec and XMS;
D. The Company desires to employ the Executive with the Company, and the
Executive desires to accept such employment, on the terms and conditions herein
set forth;
NOW, THEREFORE, in consideration of the mutual covenants and
conditions provided 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 hereby agree as follows:
1. Employment, Duties and Authority.
1.1. Exclusive Devotion of Business Time.
(a) The Company agrees to employ the Executive and the Executive agrees to
devote his full business time, effort, skills and loyalty to the business of the
Company to effectively carry out his responsibilities to the Company hereunder
and to render his services and skills in the furtherance of the business of the
Company; provided, that this provision shall not prevent the Executive from: (i)
serving on civil and charitable boards, subject to the Company's policies and
standards; (ii) managing his
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investments and the investments of his immediate family, subject to the
Company's policies and standards; provided that the activities referenced in
clauses (i) and (ii) above do not, individually or in the aggregate, interfere
with the performance of the Executive's duties under this Agreement; and (iii)
operating the building located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (or
any successor or replacement building).
(b) During the first six (6) months of the Executive's employment he shall
devote at least fifty percent (50%) of his time to the business and affairs of
the six executive office suites located in the Sacramento, California area which
were operated by Xebec and XMS prior to the Acquisition.
1.2. Title; Position. The Company agrees to employ the Executive as
its Regional Director. The primary responsibilities ("Primary Duties") of the
Executive shall be determined by the Board of Directors of Holdings (the
"Board") from time to time. Without limiting the foregoing, the Executive shall
serve at the request of the Board as a director or officer of any corporation of
any type or kind, domestic or foreign, or any partnership, limited liability
company or joint venture in the furtherance of the Business and shall otherwise
assist in the preparation of, and implementation of, the strategic business
plans of the Company.
1.3. Reporting. The Executive shall report to the Board and to such
other senior executives of the Company from time to time designated by the Board
(collectively, the "Management Team") in the manner from time to time reasonably
determined by the Board.
1.4. Cooperation. During the term of this Agreement, the Executive
agrees to give prompt notice to the Company of any material claim or injury
relating to the Company, and fully to cooperate in good faith and to the best of
his ability with the Company in connection with all pending, potential or future
claims, investigations or actions which directly or indirectly relate to any
transaction, event or activity about which the Executive may have knowledge
because of his employment with the Company. Such cooperation shall be at the
Company's expense and shall include all assistance that the Company, its
counsel, or its representatives may reasonably request, including reviewing and
interpreting documents, meeting with counsel, providing factual information and
material, and appearing or testifying as a witness. Notwithstanding anything to
the contrary in this Section 1.4, Executive shall have no obligation to
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provide assistance to the Company (or to any parent, subsidiary, or affiliate of
the Company) in any lawsuit, arbitration, or other proceeding brought by the
Company which relates to, arises out of, or is based upon the acquisition of
assets from Xebec or XMS Greenhaven including, without limitation, any claim for
indemnification.
1.5. Primary Office Location. The Executive shall perform his duties
at the office of the Company in Sacramento, California. The Executive shall
travel for business reasons from time to time as is necessary or advisable for
the performance of his duties hereunder. Notwithstanding the foregoing, the
Executive shall (a) not (during the first six (6) months of the Executive's
employment hereunder) be required to change his current residence and (b) shall
not be required to spend more than 25% of his working time outside of the
greater Sacramento area.
1.6. Performance of Duties. During the term of this Agreement, the
Executive shall perform the duties assigned to him which duties shall be
consistent with his position and shall observe and carry out such reasonable
rules, regulations, policies, directions and restrictions as the Board shall
from time to time establish and as are consistent with such rules, regulations,
policies, directions and restrictions imposed on senior executives of Holdings.
1.7. Certain Defined Terms. For the purposes of this Agreement, the
following terms shall have the respective meanings ascribed thereto in this
Section:
1.7.1. "Business" means the executive suite business, to wit:
providing lessees with furnished separate office space and use of on-site
administrative support services, such as receptionists, word processing or
secretarial assistance, office management, mail and courier facilities,
conference facilities, telecommunication services and sundries, as such business
is conducted on a specified date by the Company and as planned or projected to
be conducted during the one year period after such date.
1.7.2. "Cause" shall mean any of the following conditions:
(i) The Executive has engaged in conduct which: (A) is a
misdemeanor and involves moral turpitude or the property of the Company that has
a material adverse effect on the reputation, business or prospects of the
Company, or (B) is a felony under the laws of the United States or any state or
political subdivision thereof,
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(ii) The Executive (A) commits a breach of his fiduciary
duty to the Company or any of its affiliates, (B) is grossly negligent in the
performance of his duties, (C) engages in willful misconduct or (D) engages in
acts of self-dealing or acts which constitute a conflict of interest; provided
however that the Executive's ownership in the building located at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (or any successor or replacement building) shall
not violate his Section 1.7.2.
(iii) The Executive violates the internal procedures or
policies of the Company in a manner which has a material adverse effect on the
reputation, business or prospects of the Company such as conduct constituting
employment discrimination or sexual harassment;
(iv) The Executive breaches any of his material
obligations hereunder and fails to remedy such breach within thirty (30) days
after notice thereof; or
(v) The Executive fails to satisfactorily perform his
duties hereunder after notice from the Company of such unsatisfactory
performance and a reasonable period of time to remedy the deficiency described
in such notice.
1.7.3. "Confidential Information" means all confidential and
proprietary information of the Company, including, without limitation,
information relating to or concerning Proprietary Products (as defined below)
and the exploitation of proprietary rights relating thereto; the Business; trade
secret information; client, investor, customer and supplier lists, and contracts
or arrangements; financial information (including financial statements, budgets
and projections); market research and development procedures, processes,
techniques, plans and results (including inconclusive results); all information
which may be included in any patent or copyright application or amendment
thereof or defense or litigation with respect thereto; marketing, licensing and
distribution or franchising strategies, plans or projections; investment or
acquisition opportunities, plans or strategies; products and asset composition;
pricing information or policies; royalty, franchising or licensing arrangements;
computer software, passwords, programs or data; and all other business related
information which has not been publicly disclosed by the Company or its
affiliates, whether such information is in written, graphic, recorded,
photographic, data or any machine readable form or is orally conveyed to, or
memorized by, or developed by the Executive; provided, that Confidential
Information shall not include
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information which: (i) at the time of disclosure is generally known in the
business and industry in which the Company is engaged; or (ii) after disclosure
is published or otherwise becomes generally known in such business or industry
through no fault of the Executive.
1.7.4. "Developments" means discoveries, concepts, ideas,
designs, methods, formulas, know-how, techniques, systems or any improvements or
enhancements thereon, whether or not patentable or copyrightable, made,
conceived, improved or developed, in whole or in part, by the Executive during
the term of this Agreement relating to: (i) any of the Company's or its
affiliates' products or services, potential products or services, developments
or techniques; or (ii) any work in which the Executive is or may be engaged on
behalf of the Company or its affiliates.
1.7.5. "Disability" means the Executive's physical or mental
incapacity which, in the reasonable good faith determination of the Board,
renders the Executive incapable of performing the essential functions of his
duties under this Agreement for any consecutive forty-five (45) day period or
for any sixty (60) days within any period of one hundred and twenty (120) days.
1.7.6. "Documents" means any and all books, textbooks,
letters, pamphlets, drafts, memoranda, notes, records, drawings, files,
documents, manuals, compilations of information, correspondence or other
writings of any kind and all copies, abstracts and summaries of any of the
foregoing, whether in printed, written or electronic data or any machine
readable form: (i) of the Company or its affiliates; or (ii) in the possession
or control of the Executive and pertaining to, and used in the furtherance of,
the Business.
1.7.7. "Good Reason" means: (i) the failure to pay in a timely
manner any compensation due to Executive hereunder that Company fails to remedy
within thirty (30) days after notice thereof by the Executive; (ii) a material
breach by the Company of any provision of this Agreement that the Company fails
to remedy or cease within thirty (30) days after notice thereof by the
Executive; (iii) the failure of the Company to adopt an Executive stock option
plan ("Option Plan") on or before August 31, 1999 and to issue options ("Stock
Options") to the Executive thereunder; and (iv) delivery by the Executive of
written notice to the Company within sixty (60) days after the issuance of such
Stock Options ("Option Objection Notice") which notice states that the number
and terms of Stock Options (including vesting schedule and terms) issued to the
Executive are not
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satisfactory to the Executive, and the Company and the Executive have not,
within thirty (30) days after delivery of the written notice to the Company,
executed an agreement concerning the number and terms of Stock Options to be
granted to the Executive.
1.7.8. "Proprietary Products" means collectively Documents,
Developments and Related Property; provided however that Proprietary Products
shall not include Documents, Developments, and Related Products, relating to the
operation of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇.
1.7.9. "Related Property" includes all tangible and intangible
property owned by, or licensed to, or otherwise used by the Company or its
affiliates including, without limitation, projects, programs, computer software
or hardware, data bases, technology, know-how, copyrights, trademarks, trade
names, service names, service marks, logos and designs and other proprietary
rights and registrations and applications and the rights to apply therefor.
1.7.10 "Temporary Disability" means the Executive's physical or
mental incapacity which, in the reasonable good faith determination of the
Board, renders the Executive incapable of performing the essential functions of
his Primary Duties and which condition does not meet the frequency or duration
criteria necessary pursuant to Section 1.7.5 for such disability to constitute
"Disability."
2. Compensation and Benefits.
2.1. Annual Salary and Covenant Payment.
From the date hereof until termination of the Executive's employment
hereunder in accordance with Section 3, the Company shall pay to the Executive a
fixed base salary at an annual rate of $108,000 (the "Salary"). The Company may,
in its sole discretion, increase the amount of Salary effective for any
specified year or part thereof during the term of this Agreement. In addition to
the Salary, the Executive shall be paid a fixed annual amount of $3,600 (the
"Covenant Payment" and, together with the Salary, the "Annual Payments") as
separate consideration for the Executive's covenants and agreements provided in
Section 8. The aggregate amount of each of the (i) salary; and (ii) covenant
payment shall be increased effective as of the end of each annual anniversary of
this Agreement in proportion to the proportionate annual increase in the
Consumer Price Index -- All Urban Consumers - National Area, 1997 being the base
year. The Annual Payments shall be paid to the Executive in accordance with the
normal
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payroll practices of the Company as in effect from time to time.
2.2. Performance Bonus. The Executive shall be eligible to receive
an annual performance bonus in such amounts, if any, as determined by the Board,
in its sole discretion considering such factors as it deems appropriate
including the success in achieving goals related to the Primary Duties and other
performance criteria determined from time to time by the Board and the direct
contribution by the Executive in any such success; provided, that in no event
shall the performance bonus of any year exceed fifty percent (50%) of the then
effective Annual Payments to the Executive. The Company undertakes, within sixty
(60) days after the date hereof, to establish a bonus plan which will include
the establishment of quarterly targets and clarify performance criteria.
2.3. Reimbursement of Expenses. The Company shall reimburse the
Executive for reasonable out-of-pocket expenses incurred by the Executive for
the benefit of the Company upon presentation of appropriate documentation in
accordance with Company policy in effect from time to time.
2.4. Vacation Time. The Executive shall be entitled to paid vacation
in accordance with the Company's policies in effect from time to time. Vacation
time shall accrue on a daily basis, and shall be taken at times when reasonably
appropriate given the Executive's responsibilities and consistent with the needs
of the Company and shall not be for a period greater than two weeks at a time
without the consent of the Company, which consent shall not be unreasonably
withheld. Notwithstanding anything to the Company's policies in effect from time
to time, the Company hereby acknowledges and agrees that the Executive is
carrying over from Xebec four (4) weeks of vacation and that the Company is
obligated to provide for this four weeks, in addition to any vacation accruals
from and after his employment with the Company under this Section 2.4.
2.5. Benefits. During the period that the Executive is employed by
the Company and for such longer period as required by applicable law, the
Executive shall be entitled to participate in the Executive benefit plans,
policies and programs, including health and disability insurance (collectively,
"Benefits"), on the same terms and conditions made available to other senior
Executives of the Company.
2.6. Executive Stock Options. The Executive shall be entitled to
participate in the Option Plan at the time it is
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adopted, together with other management Executives of the Company, on a basis
which gives due and equitable regard to the Executive's management and reporting
level and the level of Stock Option grants to Executives in comparable positions
within the Company and its affiliated companies covered by the Option Plan.
2.7. Withholding. All payments of compensation shall be subject to
all applicable withholding taxes and other legally required payroll deductions.
The Executive shall provide the Company with all information reasonably
requested by the Company with respect to such deductions and withholdings.
3. Term and Termination.
3.1. Term. Subject to Section 3.2, this Agreement shall have an
initial term of three (3) years commencing on the date hereof (the "Initial
Term"). The Initial Term may be extended upon the mutual agreement of the
Company and the Executive.
3.2. Termination.
3.2.1 Notwithstanding any provision herein to the contrary, the
Executive's employment hereunder shall be terminated upon any of the following
events: (i) the death or Disability of the Executive; or (ii) the termination of
the Executive by the Company; provided that any termination hereunder, other
than as a result of death, shall be communicated by a notice from the party
terminating the employment to the other party and such termination shall be
effective on the date such notice is deemed given by such party in accordance
with Section 14, unless a different effective date is specified in the notice;
provided further that either party, upon receipt of a notice of termination
specifying a future termination date, may require the termination to be
effective earlier than the date specified.
3.2.2 In the event of the Disability or Temporary Disability of the
Executive, the Company shall have the right to appoint: (i) a temporary
replacement to assume some or all of the Executive's duties in the event of a
Temporary Disability; and (ii) a permanent replacement if the Executive's
employment hereunder is terminated because of a Disability. During any period
the Executive is suffering a Temporary Disability, the Company will continue, on
the same terms and conditions, the Executive's Annual Payments, Benefits and
Performance Bonus. Any period of paid disability leave under this Section shall
be counted against any period
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of unpaid leave to which the Executive may be entitled under any federal, state
or local family and medical leave laws.
3.3. Payments Upon Termination of Employment. In the event of
termination of the Executive's employment hereunder pursuant to this Section 3:
3.3.1. The Executive (or his heirs, legatees or personal
representatives) shall be entitled to receive all compensation and benefits
specified in this Agreement which shall have accrued prior to the date of such
termination and the obligation of the Company for the payment of compensation,
and the right of the Executive to receive any further compensation or benefit,
except as provided by applicable law or otherwise provided herein, shall
terminate as at the date of such termination.
3.3.2. All rights of the Company or the Executive which shall
have accrued hereunder prior to the date of the Executive's termination, and the
provisions of this Agreement which are stated herein to survive termination,
shall survive such termination and the Company and the Executive shall continue
to be bound by such provisions in accordance with the terms hereof.
3.3.3. If the employment hereunder is terminated because of
the Executive's death or Disability, then the Company shall, in addition to the
payments under Section 3.3.1, pay any benefits which are expressly provided to
the Executive upon his death or Disability under the terms of any benefit plan,
policy or program in effect at the time of such death or Disability year. The
Company represents that it currently provides to its executives and will provide
to the Executive a life insurance policy payable to the Executive's designated
beneficiary in the amount of $50,000.
3.3.4. If the employment hereunder is terminated by the
Company for any reason other than for Cause or the death or Disability of the
Executive or if the employment hereunder is terminated by the Executive for Good
Reason, then the Company shall, subject to the terms and provisions of Section
3.5:
(i) pay to the Executive all Annual Payments to which
the Executive would have been entitled had the Executive continued working
through the remainder of the Initial Term (as the same may have been extended --
("Continuation Payments") payable on the dates such amounts would have been
otherwise payable to the Executive;
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(ii) continue through the end of the Initial Term (as
the same may have been extended) any benefits to which the Executive is entitled
("Benefit Continuations"), subject to the terms (including cost-sharing by the
Executive) of any such benefit plan, policy or program in effect on the date of
such termination, and only to the extent benefit continuation is permitted by
those benefit plans, policies and programs. Notwithstanding the foregoing
provisions of subsection (i) and (ii) of this Section 3.3, if the Executive
terminates his employment pursuant to Section 1.7.7(iv) (relating to the
delivery of an Option Objection Notice by the Executive) the Executive shall not
be entitled to Continuation Payments or Benefit Continuations; and
(iii) with respect to Benefit Continuations relating to
retirement and health insurance benefits, the Company at its election, in its
sole discretion, may provide the Executive with either: (A) benefits
substantially similar to those which the Executive was entitled to receive under
the health insurance and retirement programs of the Company in effect on the
date of termination, at a cost to the Executive which is no greater than the
cost to the Executive at the date of termination; or (B) the cost to replace
those benefits at substantially the same level.
3.4. Omitted.
3.5. Exclusive Benefits. Except as so provided in this Section 3, no
further benefits, compensation or rights of the Executive shall continue to
accrue after the date of the termination of the employment of the Executive
hereunder, except as required by law.
4. Ownership of Rights to Proprietary Products.
4.1. The Executive acknowledges and agrees that the Proprietary
Products are and shall be the exclusive and valuable property of the Company or
its affiliates, as the case may be, and the Executive shall neither have, nor
claim to have, any right, title or interest therein or thereto. All
opportunities relating to the Proprietary Products whether or not involving
third parties shall belong to and be carried out for the account of the Company.
4.2. Any and all Developments, to the extent that the Executive
assisted in or was partially or fully responsible for the development thereof,
shall be deemed work specifically ordered or commissioned by the Company and
each of such Developments shall be considered a "work made for
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hire" within the meaning of 17 U.S.C. ss.101 of the United States Copyright Act
and all rights to such work shall belong entirely to the Company. The Executive
shall from time to time upon the request of the Company promptly execute and
deliver to the Company any instruments necessary to effect the irrevocable
assignment of all of his right, title and interest, including copyright and
author rights, in such works to the Company and for the Company to obtain
proprietary rights in connection therewith.
4.3. The Executive's covenants under this Section 4 of this
Agreement shall survive the expiration or termination of this Agreement.
5. Confidentiality. The Executive acknowledges and agrees that it is
imperative to the success of the Company and its affiliates that all
Confidential Information be maintained in strict confidence at all times. The
Executive shall therefore retain in strict confidence and not, directly or
indirectly, copy or disclose or transfer to any third party any Confidential
Information except in the furtherance of the Business for the benefit of the
Company; nor shall he use Confidential Information for any purpose except for
the benefit of the Company or its affiliates. The Executive's covenants under
this Section 5 of this Agreement shall survive the expiration or termination of
this Agreement.
6. Documents. The Executive agrees that any and all Documents made or kept
by him shall be and are the sole and exclusive property of the Company. The
Executive agrees to execute and deliver to the Company or its affiliates, as the
case may be, any and all agreements or instruments of any nature which the
Company or its affiliates deem necessary or appropriate to acquire, enhance,
protect, perfect, assign, sell or transfer his rights under this Section. The
Executive also agrees that, upon request, he will place all Documents in the
Company's possession and will not remove or cause to be removed any Documents or
reproductions thereof, except as is necessary and customary to directly further
the Business for the benefit of the Company or with the prior consent of the
Company. Upon the expiration or termination of the employment of the Executive
hereunder, all Documents shall remain in the possession or control of the
Company and any Documents within the possession or control of the Executive or
any of his affiliates shall be promptly returned to the Company at its principal
office. The Executive's covenants under this Section 6 of this Agreement shall
survive the expiration or termination of this Agreement.
7. Developments.
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7.1. The Executive shall communicate and fully disclose to the
Company any and all Developments made or conceived by him during his employment
with the Company, and any and all Developments which he may conceive or make,
during his employment with the Company, shall be at all times and for all
purposes regarded as acquired and held by his in a fiduciary capacity and solely
for the benefit of the Company and shall be the sole and exclusive property of
the Company.
7.2. The Executive shall assist the Company in every proper way upon
request to obtain for its benefit patents, copyrights, trade names, trademarks,
service names, service marks for any and all Proprietary Products and
Developments in the United States and all foreign countries. All such patents,
copyrights, trade names, trademarks, service names, service marks and any
registrations and applications therefor are to be, and remain, the exclusive
property of the Company and the Executive agrees that he will, whenever so
requested by the Company or its duly authorized agent, make, execute and deliver
to the Company its affiliates, successors, assigns, or nominees, without charge,
any and all applications, assignments and all other instruments which the
Company or its affiliates shall reasonably deem necessary or appropriate in
order to apply for and obtain such patents, copyrights, trade names, trademarks,
service names, and service marks or in order to assign and convey to the Company
or its affiliates, their successors, assigns or nominees, the sole and exclusive
right, title and interest therein and thereto. The Executive's obligations to
execute any such instruments shall continue notwithstanding the termination or
expiration of this Agreement.
8. Covenant Not to Compete. The Executive acknowledges and agrees that the
Proprietary Products are the exclusive and valuable property of the Company and
may not be used by the Executive for any purpose of any kind, directly or
indirectly, except during the term of this Agreement for the sole and exclusive
benefit of the Company in his capacity as an Executive of the Company and that
the success of the Company depends on the Executive's observance of his
covenants in this Section 8.
8.1. In consideration of the rights and benefits hereunder including
the Covenant Payments, the Executive agrees that so long as he is an Executive
or consultant of the Company on the same terms and conditions contained herein,
for the Restrictive Period (as hereinafter defined) he shall not directly or
indirectly:
8.1.1. Engage or participate in any business
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or line of business that competes with the Business (or any line of business)
conducted by the Company or under consideration by the Company; or perform any
research or development or distribution or marketing services for any
Proprietary Product or any product which is related to the Business that could
be, directly or indirectly, developed, marketed or otherwise exploited by the
Company.
8.1.2. Solicit, hire or retain any Executive or consultant of
the Company or persuade or entice any such Executive or consultant to terminate
or lessen the extent of his, her or its relationship with the Company.
8.1.3. Engage in any activity to interfere with, disrupt or
damage the Business of the Company or its relationships with any of its clients,
customers, distributors, suppliers, investors or other financial co-venturer or
other business relationship, or engage in any activities in preparation for such
conduct.
8.1.4. Engage in business with, or provide advice or services
to, any person or entity which directly or indirectly competes with the Business
(or any line of business) of the Company.
8.1.5. For the purposes of this Agreement, the term
"Restrictive Period" shall mean the Initial Term (as the same may have been
extended). Notwithstanding the foregoing, if the Executive terminates his
employment pursuant to Section 1.7.7(iv) (relating to the delivery of an Option
Objection Notice by the Executive), then (a) the Restrictive Period as
applicable to subsection 8.1.1. shall terminate upon the Executive's termination
of employment, and (b) the non-competition provisions set forth in Section 6 of
the Asset Purchase Agreement shall terminate upon the Executive's termination of
employment.
8.2. For purposes of this Section 8, the term "Company" shall
include the Company and its subsidiaries and affiliates, including any entity
that directly or indirectly controls the business and affairs of the Company.
For purposes of this Section 8, Executive's work involving the management and
operation of the building at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (or any successor
building) shall not violate the terms of this Section 8.
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9. Specific Enforcement.
9.1. The Executive is obligated under this Agreement to render
services and comply with covenants of a special, unique, unusual and
extraordinary character, thereby giving this Agreement peculiar value so that
the loss of such service or violation by the Executive of this Agreement could
not reasonably or adequately be compensated in damages in an action at law.
Therefore, in addition to any other remedies or sanctions provided by law,
whether criminal or civil, and without limiting the right of the Company and
successors or assigns to pursue all other legal and equitable rights available
to them, the Company shall have the right during the Executive's employment
hereunder (or thereafter with respect to obligations continuing after the
termination of this Agreement) to compel specific performance hereof by the
Executive or to obtain temporary and permanent injunctive relief against
violations hereof by the Executive, and, in furtherance thereof, to apply to any
court with jurisdiction over the parties hereto in accordance with Section 18 to
enforce the provisions hereof.
9.2. The Executive waives any requirement for security or the
posting of any bond or other surety and proof of damages in connection with any
temporary or permanent award of injunctive, mandatory or other equitable relief
and further agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
10. Legal Costs and Expenses. If any party hereto prevails in any
proceedings, legal or equitable, to enforce any obligations under this
Agreement, such party shall also be entitled to recover all costs and expenses
incurred by such party in connection therewith, including reasonable attorneys'
and accountants' fees and disbursements.
11. Assignment. The rights and duties of the Executive hereunder are not
assignable. The Company may assign this Agreement and all rights and obligations
hereunder to any third party who becomes a successor to the Company's Business.
Upon any such assignment by the Company, the term "Company" as used herein shall
be deemed to include any such assignee of the Company, and the assignee shall
have the right to enforce all of the Company's rights and remedies hereunder in
its own name as if a party hereto in the place and stead of the Company. The
Executive agrees to confirm his obligations to any assignee, transferee,
licensee or sublicensee of the Company or their successors and assigns (a
"Successor Employer") by executing a new contract with such Successor Employer
containing, in the aggregate, substantially the same
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economic terms and conditions as herein provided; provided that such Successor
Employer also confirms to the Executive all of the Company's obligations as
herein provided.
12. Binding Effect. This Agreement shall be binding upon the parties
hereto and their respective successors-in-interest, heirs and personal
representatives and, to the extent permitted herein, the assigns of the Company.
13. Severability. If any provision of this Agreement or any part hereof or
the application hereof to any person or circumstance shall be finally determined
by a court of competent jurisdiction or by any arbitration panel to be invalid
or unenforceable to any extent, the remainder of this Agreement, or the
remainder of such provision or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall not be affected thereby and each provision of this
Agreement shall remain in full force and effect to the fullest extent permitted
by law. The parties also agree that if any portion of this Agreement, or any
part hereof or application hereof, to any person or circumstance shall be
finally determined by a court of competent jurisdiction or arbitration panel to
be invalid or unenforceable to any extent, then such objectionable provision
shall be deemed modified to the extent necessary so as to make it valid,
reasonable and enforceable including, without limitation, modification of the
restrictive covenants of Section 8 with respect to geography, time or scope of
business.
14. Notices. Wherever provision is made in this Agreement for the giving
of any notice, such notice shall be in writing and shall be deemed to have been
duly given if mailed by first class United States mail, postage prepaid,
addressed to the party entitled to receive the same or if delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by overnight
courier to such party at the address specified below or to such other address,
in any such case, as any party hereto shall have last designated by notice to
each other party:
If to Xebec and/or XMS:
InterOffice Sacramento, Inc.
▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Board of Directors
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Page 15
With a copy to: (i) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP, ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Telecopy: ▇▇▇-▇▇▇-▇▇▇▇; and (ii)
▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., General Counsel, Reckson Realty Associates Corp., ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to the Executive:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
at the address set forth in the recitals
Telecopy: ____________
All such notices, requests and other communications will: (i) if
delivered personally to the address (with a signed receipt of acknowledgment) as
provided in this Section, be deemed given upon delivery; (ii) if delivered by
facsimile transmission to the facsimile number as provided in this Section, be
deemed given upon the completion of the facsimile transmission, if the receipt
is confirmed by the telefax machine; (iii) if delivered by overnight courier, be
deemed given upon the first business day after such notice, request or other
communication is given to such courier with all charges and fees prepaid and any
required signature of the deliveree is waived; and (iv) if delivered by mail in
the manner described above to the address as provided in this Section, be deemed
given upon receipt (in each case regardless of whether such notice, request or
other communication is received by any other person to whom a copy of such
notice, request or other communication is to be delivered pursuant to this
Section).
15. Entire Agreement; Amendment. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior written or oral negotiations, representations,
agreements, commitments, contracts or understandings with respect thereto and no
modification, alteration or amendment to this Agreement may be made unless the
same shall be in writing and signed by both of the parties hereto.
16. Waivers. No failure by either party to exercise any of such party's
rights hereunder or to insist upon strict compliance with respect to any
obligation hereunder, and no custom or practice of the parties at variance with
the terms hereof, shall constitute a waiver by either party to demand exact
compliance with the terms hereof. Waiver by either party of any particular
default by the other party shall not affect or impair such party's rights in
respect to any
Page 16
subsequent default of the same or a different nature, nor shall any delay or
omission of either party to exercise any rights arising from any default by the
other party affect or impair such party's rights as to such default or any
subsequent default.
17. Governing Law. For purposes of construction, interpretation and
enforcement, this Agreement shall be deemed to have been entered into under the
laws of the State of California and its validity, effect, performance,
interpretation, construction and enforcement shall be governed by and subject to
the laws of the State of California without reference to its choice of law
rules.
18. Exclusive Jurisdiction. All actions and proceedings arising out of, or
relating to, this Agreement shall be heard and determined in any state or
federal court sitting in the county of Sacramento, California. Each of the
Company and the Executive, by execution and delivery of this Agreement: (i)
expressly and irrevocably consent and submit to the personal jurisdiction of any
of such courts in any such action or proceeding; (ii) consent to the service of
any complaint, summons, notice or other process relating to any such action or
proceeding by delivery thereof to such party by hand or by U.S. certified mail
without return receipt requested, delivered or addressed as set forth in Section
14 of this Agreement; and (iii) waive any claim or defense in any such action or
proceeding based on any alleged lack of personal jurisdiction, improper venue or
forum non conveniens or any similar basis.
19. Interpretation. Section titles and headings to sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
20. Expenses. Each of the Company, on the one hand, and the Executive, on
the other, will pay all of their own costs and expenses incident to the
negotiation and preparation of this Agreement.
21. Miscellaneous.
21.1. This Agreement may be executed in one or more counterparts,
each of which shall be considered an original instrument, but all of which shall
be considered one and the same agreement.
21.2. The Section headings herein are for convenience of reference
only and shall not be used to
Page 17
construe the meaning of any provision of this Agreement.
21.3. Any word or term used in this Agreement in any form shall be
masculine, feminine, neuter, singular or plural, as proper reading requires. The
words "herein", "hereof", "hereby" or "hereto" shall refer to this Agreement
unless otherwise expressly provided. Any reference herein to a Section or any
exhibit or schedule shall be a reference to a Section of, and an exhibit or
schedule to, this Agreement unless the context otherwise requires.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
COMPANY:
InterOffice Sacramento, LLC
by: InterOffice (Holdings) Corporation
(Sole Member)
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
InterOffice (Holdings) Corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
EXECUTIVE:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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