展覽10.6
第三份僱傭協議修訂
此第三份僱傭協議修訂（以下簡稱“第三次修正協議”）由馬里蘭州公司CTO REALTY GROWTH, INC.（以下簡稱“公司”）和DANIEL E. SMITH（以下簡稱“高管”).
背景
公司和高管是《僱傭協議》當事方，日期爲2014年10月22日 2016年2月26日的《僱傭協議和獎勵協議的綜合修正案》，2017年8月4日的《第二份僱傭協議和獎勵協議的綜合修正案》，服務於一起“僱傭協議公司和高管希望對《僱傭協議》進行某些修改，如以下更詳細地闡述。
修訂
爲了進一步推動前述事項，公司和行政人員特此達成以下協議：
1.僱傭協議特此經修訂，刪除第5條.f，並以以下內容替換：
f. | 符合280G條款的合規性執行人員和公司將共同努力，誠實合作，以減少或消除1986年修訂版《內部稅收法典》第280G條的任何影響代碼。爲此，如果公司的所有權或控制發生變化，會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員或執行人員受益（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）的任何支付或分配（每個「支付」） 受到法典第4999條規定的濫用稅的影響（該濫用稅，以及執行人員就此濫用稅支付的任何利息或罰款，均爲“ 實體，公司將與執行人員誠信合作，共同努力減少或消除“ ”).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。”的所得稅消費稅），則高管將收到以下金額中最高的一個，即給高管帶來最高淨稅後金額的（在考慮聯邦、州、地方和社會安全稅後）：（a）付款或（b）支付金額減一美元，該金額將使高管受到消費稅的約束。 |
2.僱傭協議特此修訂，刪除第5.h.部分，並增加以下新第13部分：
| 13. | 限制性契約. |
| a. | 保密信息在執行公司的職務以及代表公司集團（如下文所定義）履行職責的過程中，執行人將被提供並可以訪問機密信息（如下文所定義）。考慮到執行人收到和訪問此類機密信息，以及作爲執行人在此就業的條件，執行人應遵守本 第13.a節. |
| (i) | 在僱傭期間（如下文所定義）及以後，除非本協議明文允許或董事會的指示，執行人不得向任何人或實體披露任何機密信息，並且不得使用任何機密信息，除了爲了公司集團的利益。執行人應遵守所有有關機密信息安全的公司集團政策和規程（無論機密信息存儲在何種載體上）。除了爲了代表公司集團履行職責所需的情況外，執行人不得從任何公司集團成員的設施中移走與機密信息有任何關聯的設備、圖紙、筆記、報告、手冊、發明記錄、計算機軟件、承租信息或其他數據或材料（無論紙質還是電子形式，無論是執行人制作還是公司集團獲取）。本 第13.a.i節 應適用於在執行任期內，執行人員被聘用或與公司或公司集團的任何其他成員有關期間，無論當前已知或日後可能被執行人員所知的所有機密信息。 |
| (ii) | 儘管有任何規定 第13.a.i節 與機密信息相關的披露和使用： |
| (A) | 向公司集團成員的其他員工披露需要了解公司集團業務中的機密信息； |
| (B) | 董事會書面批准的披露和使用； |
| (C) | 披露給已被公司集團的一名成員聘用以向一個或多個公司集團成員提供服務並同意書面協議的個人或實體。 |
| 遵守保密協議條款，並以公司認可的形式書面撰寫；和 |
| (D) | 適用法律要求的披露。 |
| (iii) | 在僱傭期滿後，高管應立即將所有原件和副本的任何文件、記錄、筆記本、文件、信件、報告、備忘錄或者包含機密信息、專有信息或公司的任何其他材料或財產（包括公司的鑰匙和其他有形個人財產）返還給公司，這些材料當時由高管擁有，不管是由高管自己還是他人準備。高管同意，在與公司的僱傭關係因任何原因終止或要求時，將允許公司代表訪問高管在任何個人計算機、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所有數據，其在爲公司工作過程中以任何方式使用，唯一目的是永久刪除、複製和/或刪除任何屬於公司或涉及公司、其顧客、潛在客戶、業務夥伴、業務或其他包含公司機密信息或任何其他屬於公司信息的數據。 |
| (iv) | “保密信息” 意味着在高管受僱於公司或任何公司集團其他成員在職期間（無論是否在工作時間或其他時間，無論是否在公司場所或其他場所）由高管構思、製作、開發或獲得或向高管披露（無論口頭還是書面）的所有機密、具競爭價值、非公開或專有信息，包括但不限於：（i）任何公司集團的技術信息、其關聯公司、其顧客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、思想、專業技術、方式、構成、過程、發現、機器、發明（無論是否可申請專利）、設計、開發或實驗性工作、技術、改進、進行中的工作、研究或測試結果、原創作品、培訓方案和程序、圖表、商業計劃和類似項目；（ii）涉及任何公司集團業務、資產或服務的信息（包括所有涉及企業機會、運營、未來計劃、商業經營方法、商業計劃、發展業務和市場份額策略、研究、金融和銷售數據、定價條款、評估、意見、解釋、收購前景、 |
| 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]