展览10.6
第三份雇佣协议修订
此第三份雇佣协议修订（以下简称“第三次修正协议”）由马里兰州公司CTO REALTY GROWTH, INC.（以下简称“公司”）和DANIEL E. SMITH（以下简称“高管”).
背景
公司和高管是《雇佣协议》当事方，日期为2014年10月22日 2016年2月26日的《雇佣协议和奖励协议的综合修正案》，2017年8月4日的《第二份雇佣协议和奖励协议的综合修正案》，服务于一起“雇佣协议公司和高管希望对《雇佣协议》进行某些修改，如以下更详细地阐述。
修订
为了进一步推动前述事项，公司和行政人员特此达成以下协议：
1.雇佣协议特此经修订，删除第5条.f，并以以下内容替换：
f. | 符合280G条款的合规性执行人员和公司将共同努力，诚实合作，以减少或消除1986年修订版《内部税收法典》第280G条的任何影响代码。为此，如果公司的所有权或控制发生变化，会导致公司或任何其他个人、公司、合伙企业、公司、协会或其他实体向执行人员或执行人员受益（无论根据本协议条款或其他方式支付或应支付或分配或可分配）的任何支付或分配（每个“支付”） 受到法典第4999条规定的滥用税的影响（该滥用税，以及执行人员就此滥用税支付的任何利息或罚款，均为“ 实体，公司将与执行人员诚信合作，共同努力减少或消除“ ”).适用于拖欠余额的合格住宅客户的分期付款安排长达12个月。先支付欠款金额的定金，然后通过分期支付剩余金额，加上常规月度账单。”的所得税消费税），则高管将收到以下金额中最高的一个，即给高管带来最高净税后金额的（在考虑联邦、州、地方和社会安全税后）：（a）付款或（b）支付金额减一美元，该金额将使高管受到消费税的约束。 |
2.雇佣协议特此修订，删除第5.h.部分，并增加以下新第13部分：
| 13. | 限制性契约. |
| a. | 保密信息在执行公司的职务以及代表公司集团（如下文所定义）履行职责的过程中，执行人将被提供并可以访问机密信息（如下文所定义）。考虑到执行人收到和访问此类机密信息，以及作为执行人在此就业的条件，执行人应遵守本 第13.a节. |
| (i) | 在雇佣期间（如下文所定义）及以后，除非本协议明文允许或董事会的指示，执行人不得向任何人或实体披露任何机密信息，并且不得使用任何机密信息，除了为了公司集团的利益。执行人应遵守所有有关机密信息安全的公司集团政策和规程（无论机密信息存储在何种载体上）。除了为了代表公司集团履行职责所需的情况外，执行人不得从任何公司集团成员的设施中移走与机密信息有任何关联的设备、图纸、笔记、报告、手册、发明记录、计算机软件、承租信息或其他数据或材料（无论纸质还是电子形式，无论是执行人制作还是公司集团获取）。本 第13.a.i节 应适用于在执行任期内，执行人员被聘用或与公司或公司集团的任何其他成员有关期间，无论当前已知或日后可能被执行人员所知的所有机密信息。 |
| (ii) | 尽管有任何规定 第13.a.i节 与机密信息相关的披露和使用： |
| (A) | 向公司集团成员的其他员工披露需要了解公司集团业务中的机密信息； |
| (B) | 董事会书面批准的披露和使用； |
| (C) | 披露给已被公司集团的一名成员聘用以向一个或多个公司集团成员提供服务并同意书面协议的个人或实体。 |
| 遵守保密协议条款，并以公司认可的形式书面撰写；和 |
| (D) | 适用法律要求的披露。 |
| (iii) | 在雇佣期满后，高管应立即将所有原件和副本的任何文件、记录、笔记本、文件、信件、报告、备忘录或者包含机密信息、专有信息或公司的任何其他材料或财产（包括公司的钥匙和其他有形个人财产）返还给公司，这些材料当时由高管拥有，不管是由高管自己还是他人准备。高管同意，在与公司的雇佣关系因任何原因终止或要求时，将允许公司代表访问高管在任何个人计算机、笔记本电脑、智能手机、平板电脑、电话或其他电子设备或存储介质上存储的所有数据，其在为公司工作过程中以任何方式使用，唯一目的是永久删除、复制和/或删除任何属于公司或涉及公司、其顾客、潜在客户、业务伙伴、业务或其他包含公司机密信息或任何其他属于公司信息的数据。 |
| (iv) | “保密信息” 意味着在高管受雇于公司或任何公司集团其他成员在职期间（无论是否在工作时间或其他时间，无论是否在公司场所或其他场所）由高管构思、制作、开发或获得或向高管披露（无论口头还是书面）的所有机密、具竞争价值、非公开或专有信息，包括但不限于：（i）任何公司集团的技术信息、其关联公司、其顾客或其他第三方的技术信息，包括计算机程序、软件、数据库、数据、思想、专业技术、方式、构成、过程、发现、机器、发明（无论是否可申请专利）、设计、开发或实验性工作、技术、改进、进行中的工作、研究或测试结果、原创作品、培训方案和程序、图表、商业计划和类似项目；（ii）涉及任何公司集团业务、资产或服务的信息（包括所有涉及企业机会、运营、未来计划、商业经营方法、商业计划、发展业务和市场份额策略、研究、金融和销售数据、定价条款、评估、意见、解释、收购前景、 |
| tenants or acquisition targets or their requirements, the identity of key contacts within tenants’ organizations or within the organization of acquisition prospects, or marketing and merchandising techniques, prospective names and marks); (iii) other valuable, confidential information and trade secrets of any member of the 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 October 22, 2014 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 Third Amendment on the date first written above.
EXECUTIVE:
/s/ Daniel E. Smith
Daniel E. Smith
COMPANY:
CTO Realty Growth, Inc.,
a Maryland corporation
By: /s/ John P. Albright
John P. Albright
President and Chief Executive Officer
[Signature Page to Third Amendment to Employment Agreement]