展覽10.5
僱傭協議的第二次修正
此僱傭協議的第二次修正（以下簡稱“第二次修正協議”由馬里蘭州公司CTO REALTY GROWTH, INC.（以下簡稱“公司”與STEVEN R. GREATHOUSE（以下簡稱“高管”).
背景
公司和高管是《僱傭協議書》的當事方，該《僱傭協議書》的日期爲2016年2月26日。 以及《僱傭協議和獎勵協議的第一次綜合修正協議》（統稱爲「」）。公司和高管希望對《僱傭協議》進行一些修改，具體如下所述。僱傭協議公司和高管希望對《僱傭協議》進行一些修改，具體如下所述。
修訂
爲進一步推進，公司和執行人員特此達成以下協議：
1.僱傭協議特此經刪除第5.f款，並用以下內容替換：
f. | 遵守第280G條款。 執行人和公司將共同誠意合作，以減少或消除1986年修訂的《內部稅收法典》第280G條款可能產生的影響代碼）。 爲此，若公司的所有權或控制發生變更，導致公司或任何其他個人、公司、合夥企業、公司、協會或其他實體向執行人支付或分配或撥發或可分配的任何款項或福利(無論根據本協議條款或其他方式支付或應支付或分配或可分配)（以下簡稱“ 其他實體 ”）受《法典》第4999條徵收的增值稅(該增值稅及執行人因此增值稅而發生的任何利息或罰款，稱爲“適用於拖欠餘額的合格住宅客戶的分期付款安排長達12個月。先支付欠款金額的定金，然後通過分期支付剩餘金額，加上常規月度賬單。”消費稅），然後高管將收到以下中最高的一個，無論哪個能爲高管提供最高的稅後淨金額（考慮聯邦、州、地方和社會保障稅務）：(a) 付款或 (b) 扣除應使高管受到消費稅的付款金額一美元。 |
2.僱傭協議特此修訂，刪除5.h.部分，並添加以下新的第13節：
| 13. | 限制性契約. |
| a. | 保密信息在執行職務期間，執行官在公司內任職並代表執行職務。 |
| 在以下公司集團（如下定義），執行人員將獲得並可以訪問機密信息（如下定義）。考慮到執行人員收到和訪問此類機密信息，並作爲執行人員僱傭的條件，執行人員應遵守這 第13.a條. |
| (i) | 在僱傭期間（如下定義）及其後，除非本協議明確允許或董事會的指示，執行人員不得向任何人或實體披露任何機密信息，也不得使用任何機密信息，除了爲公司集團的利益。執行人員應遵守所有公司集團關於包含機密信息的所有文件和其他材料安全性的政策和協議（無論機密信息存儲的介質如何）。除了在代表公司集團履行執行人員職責所需的情況下，執行人員不得從任何公司集團成員的設施中拿走與機密信息有任何關係的設備、圖紙、筆記、報告、手冊、發明記錄、計算機軟件、租戶信息或其他數據或材料，無論是紙質的還是電子的，無論是執行人員製作的還是公司集團獲得的。此 第13.a.i條 適用於執行人員在受僱於或與公司或公司集團其他成員關聯的期間，執行人員獲取的現在已知或以後可能知道的所有機密信息。 |
| (ii) | 儘管 第13.a.i條 相反，管理層可能會對機密信息進行以下披露和使用： |
| (A) | 對公司集團成員的其他員工披露需要了解與公司集團業務相關的機密信息； |
| (B) | 經董事會書面批准的披露和使用； |
| (C) | 向已受僱爲公司集團一名或多名成員提供服務並書面同意遵守符合公司要求的保密協議的個人或實體披露； |
| (D) | 根據適用法律的披露要求。 |
| (iii) | 在僱傭期屆滿之時，高管應及時歸還公司所有原件和副本，其中包括任何文件、記錄、筆記本、文件、信件、報告、備忘錄或包含機密信息、專有信息或任何其他屬於公司的材料或財產（包括高管目前持有的公司鑰匙和其他有形的個人財產），無論是由高管本人還是他人準備的。高管同意，在與公司的僱傭關係因任何原因終止或要求時，允許公司代表訪問他與公司工作有關的任何個人計算機、筆記本電腦、智能手機、平板電腦、電話或其他電子設備或存儲介質上存儲的數據，目的僅爲永久刪除、複製和/或刪除屬於公司、其客戶、潛在客戶、業務夥伴、公司業務或以其他方式包含公司機密信息或任何其他信息的數據。 |
| (iv) | “保密信息”意味着在執行的僱傭或參與與公司或公司集團的任何其他成員（無論是在工作時間內還是否，並無論是在公司場所內還是外部）期間，高管或與他人一起構思、製作、開發或獲得的所有機密、具有競爭價值、非公開或專有信息（無論口頭傳達還是書面傳達） ，包括：（i）公司集團的任何成員、其關聯公司、其客戶或其他第三方的技術信息，包括計算機程序、軟件、數據庫、數據、想法、技術知識、公式、組合物、工藝、發現、機器、發明（無論是否可申請專利）、設計、 開發性或實驗性工作、技術、改進、正在進行的工作、研究或測試結果、原創作品、培訓計劃和程序、圖解、圖表、業務計劃以及類似項目；（ii）與公司集團的任何成員的業務、財產或服務相關的信息（包括所有這些信息涉及公司機會、經營方式、未來計劃、開展業務和市場份額的戰略、研究、財務和銷售數據、定價條款、評估、意見、解釋、收購前景、租戶或收購目標的身份或其要求、租戶組織或獲取前景組織中的關鍵聯繫人的身份，或市場推廣技巧、前瞻性名稱和標誌）；（iii）公司集團的任何成員的其他有價值的、機密的信息和商業祕密 |
| Company Group, its affiliates, its tenants or other third parties; and (iv) any other information that is competitively valuable to any member of the Company Group by virtue of not being publicly known. Moreover, all documents, videotapes, written presentations, brochures, drawings, memoranda, notes, records, files, correspondence, manuals, models, specifications, computer programs, e-mail, voice mail, electronic databases, maps, drawings, architectural renditions and all other writings or materials of any type including or embodying any of such information, ideas, concepts, improvements, discoveries, inventions and other similar forms of expression are and shall be the sole and exclusive property of the Company or the other applicable member of the Company Group and be subject to the same restrictions on disclosure applicable to all Confidential Information pursuant to this Agreement. For purposes of this Agreement, Confidential Information shall not include any information that (i) is or becomes generally available to the public other than as a result of a disclosure or wrongful act of Executive or any of Executive’s agents; (ii) was available to Executive on a non-confidential basis before its disclosure by a member of the Company Group; or (iii) becomes available to Executive on a non-confidential basis from a source other than a member of the Company Group; provided, however, that such source is not bound by a confidentiality agreement with, or other obligation with respect to confidentiality to, a member of the Company Group. |
| (v) | Notwithstanding anything to the contrary herein, nothing in this Agreement or in any other agreement between Executive and the Company or any other member of the Company Group shall prohibit or restrict Executive from lawfully: (i) initiating communications directly with, cooperating with, providing information to, causing information to be provided to, or otherwise assisting in an investigation by, any governmental authority (including the Securities and Exchange Commission and any other applicable governmental commission or regulatory agency) regarding a possible violation of any law; (ii) responding to any inquiry or legal process directed to Executive from any governmental authority; (iii) testifying, participating or otherwise assisting in any action or proceeding by any governmental authority relating to a possible violation of law; or (iv) making any other disclosures that are protected under the whistleblower provisions of any applicable law. Additionally, pursuant to the federal Defend Trade Secrets Act of 2016, an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that: (A) is made (1) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney and (2) solely for the purpose of reporting or investigating |
| a suspected violation of law; (B) is made to the individual’s attorney in relation to a lawsuit for retaliation against the individual for reporting a suspected violation of law; or (C) is made in a complaint or other document filed in a lawsuit or proceeding, if such filing is made under seal. Nothing in this Agreement requires Executive to obtain prior authorization before engaging in any conduct described in this paragraph, or to notify the Company or any other member of the Company Group that Executive has engaged in any such conduct. |
| (vi) | “Company Group” means the Company, Alpine Income Property Trust, Inc. (“Alpine”) and each subsidiary of the Company and Alpine, collectively. |
| (vii) | “Employment Period” means the period from February 26, 2016 through the termination of the Executive’s employment pursuant to this Agreement. |
| b. | Non-Competition; Non-Solicitation. |
| (i) | The Company shall provide Executive access to Confidential Information for use only during the Employment Period, and Executive acknowledges and agrees that the Company Group will be entrusting Executive, in Executive's unique and special capacity, with developing the goodwill of the Company Group, and in consideration of the Company providing Executive with access to Confidential Information and as an express incentive for the Company to enter into this Agreement and employ Executive hereunder, Executive has voluntarily agreed to the covenants set forth in this Section 13.b. Executive agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in all respects, do not interfere with public interests, will not cause Executive undue hardship, and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group's Confidential Information, goodwill and legitimate business interests. |
| (ii) | During the Employment Period, the Executive shall submit to the Board all Business Opportunities (as defined below) presented to the Executive or of which the Executive becomes aware. |
| (iii) | During the Prohibited Period (as defined below), Executive shall not, without the prior written approval of the Board, directly or indirectly, for Executive or on behalf of or in conjunction with any other person or entity of any nature: |
| (A) | engage or participate within the Market Area (as defined below) in competition with any member of the Company Group in any aspect of the Business (as defined below), which prohibition shall prevent Executive from directly or indirectly: (i) owning a controlling interest in, managing, operating, or being an officer or director of, any business that competes with any member of the Company Group in the Market Area, or (ii) joining, becoming an employee or consultant of, or otherwise being affiliated with or providing services to, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group in any capacity (with respect to this clause (ii)) in which Executive's duties or responsibilities involve direct or indirect responsibilities with respect to the Business. |
| (B) | appropriate any Business Opportunity of, or relating to, any member of the Company Group located in the Market Area; |
| (C) | solicit, canvass, approach, encourage, entice or induce any tenant of any member of the Company Group with whom or which Executive had contact on behalf of any member of the Company Group, about whom or which Executive obtained Confidential Information or for whom or which Executive had direct or indirect responsibilities on behalf of the Company Group to cease or lessen such tenant’s business with any member of the Company Group in the Market Area; or |
| (D) | solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group to terminate his, her or its employment or engagement with any member of the Company Group or hire or engage any employee or contractor of any member of the Company Group. |
| (iv) | The covenants in this Section 13.b, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed. |
| (v) | The following terms shall have the following meanings: |
| (A) | “Business” shall mean the business and operations that are the same or similar to those performed by the Company and any other member of the Company Group for which Executive provides services or about which Executive obtains Confidential Information during the Employment Period, which business and operations include investing in, owning, managing, operating, acquiring, developing, disposing of and/or leasing commercial real estate properties and commercial loans and other structured investments. |
| (B) | “Business Opportunity” shall mean any commercial, investment or other business opportunity relating to the Business. |
| (C) | “Market Area” shall mean the geographic areas (i) in Volusia and Orange Counties in the State of Florida and (ii) included or within 25 miles of any metropolitan statistical area from which the Company derives 1% or more of the Company’s aggregate annualized revenue at any time during the final twelve (12) months in which Executive is or has been employed by any member of the Company Group; provided, however, in no event will the geographic area referenced in this clause (ii) include any areas within the State of California. |
| (D) | “Prohibited Period” shall mean the period during which Executive is employed by any member of the Company Group and continuing for a period of twelve months following the date that Executive is no longer employed by any member of the Company Group. |
| c. | Injunctive Relief. Because of the difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in this Section 13, and because of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other |
| rights and remedies available to the Company and each other member of the Company Group at law and equity. |
3.Section 12 of the Employment Agreement shall be deemed incorporated by reference herein, mutatis mutandis.
[Signature page follows]
IN WITNESS WHEREOF, the Company and the Executive have executed this Second Amendment on the date first written above.
EXECUTIVE:
/s/ Steven R. Greathouse
Steven R. Greathouse
COMPANY:
CTO Realty Growth, Inc.,
a Maryland corporation
By: /s/ Daniel E. Smith
Daniel E. Smith
Senior Vice President,
General Counsel & Corporate Secretary
[Signature Page to Second Amendment to Employment Agreement]