EXHIBIT 12
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), is made and entered into effective
as of January 1, 1996, by and between THE VINTAGE GROUP USA, LTD., a Colorado
corporation (the "Company") and XXXXXXX X. XXXXXXXXXXXX (the "Employee").
The Company hereby employs the Employee and the Employee hereby accepts
employment on the terms and conditions hereinafter set forth.
1. TERM. Subject to the provisions for termination hereafter provided,
the initial term of this Agreement shall commence on January 1, 1996, and
terminate on December 31, 1998. Employer shall have the right to extend this
Agreement after the initial term for an additional one-year term upon payment of
such salary as the parties may agree, but otherwise on the terms and conditions
provided herein.
2. COMPENSATION. For all services rendered by the Employee under this
Agreement, the Company shall pay to the Employee:
(i) a salary of $250,000.00 per year, payable at the rate of $10,416.67
semi-monthly in arrears; and
(ii) such bonuses as the Board of Directors of the Company may from time to
time approve.
3. DUTIES. The Employee is engaged as president and chief executive
officer of the Company and in such capacity will be responsible for the general
management of the affairs of the Company reporting directly to the Board of
Directors. During the term of this Agreement, Employee shall also serve as an
officer and a director of all affiliates and subsidiaries of the Company as the
Board of Directors of such affiliate or subsidiary may elect. The Employee shall
be an active key executive of the Company and shall perform the customary duties
of a chief executive officer and such other duties with respect to the business
and operation of the Company as the Board may reasonably direct.
4. EFFORTS OF THE EMPLOYEE. The Employee shall devote substantially all
of his working time to carry out the duties required of him by the Company and
shall not engage in any commercial activity which competes with the business of
the Company. During the period of his employment hereunder and except for
periods of illness or incapacity and vacation periods, the Employee shall devote
substantially all of his business time, attention, skill and effort to the
faithful performance of his duties hereunder. Except for travel requirements,
such services shall be rendered at the principal place of business
of the Company which is presently at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx, and at such other place or places in Denver, Colorado, as the
Company shall require.
5. WORKING FACILITIES. The Employee shall be furnished with an executive
office, secretary and all such other facilities and services suitable to his
position and adequate for the performance of his duties at the principal office
of the Company in Denver, Colorado.
6. EXPENSES. The Employee is authorized to incur reasonable expenses in
the pursuit of the business of the Company, including his expenses for
entertainment, travel and similar items. The Company shall reimburse the
Employee for all such reasonable expenses after submission by the Employee to
the Company from time to time of proof of payment and an itemized account of
such expenditures. All legal fees associated with the preparation of this
Agreement shall be borne by the Company.
7. EMPLOYEE BENEFITS.
(a) During the term of the Employee's employment hereunder,
Employee and his dependents shall be entitled to participate in or receive
benefits under any employee benefit plan or other arrangement adopted by the
Company including health, disability and life insurance, and retirement plan,
subject to and on a basis consistent with the terms, conditions and overall
administration of such plan or arrangement. Nothing paid to the Employee under
any plan or arrangement presently in effect or made available in the future
shall be deemed to be in lieu of the salary amounts to the Employee pursuant to
Paragraph 2. Any payment or benefits payable to the Employee in respect of any
calendar year during which the Employee is employed by the Company for less than
the entire calendar year shall, unless otherwise provided in the applicable plan
or arrangement, be prorated in accordance with the number of days in such
calendar year during which he is so employed.
(b) The Employee shall be entitled to the number of paid
vacation days in each calendar year determined by the Company from time to time
for its executive officers, but not less than 20 working days each year
(prorated in any calendar year during which the Employee is employed for less
than the entire calendar year in accordance with the number of days in such
calendar year during which he is so employed). The Employee shall also be
entitled to all paid holidays given by the Company to its employees.
(c) The Employee shall be entitiled to the payment of dues for
membership in Xxx Xxxxxx Golf Club and the Denver Tennis club, as such shall be
due from time to time during the term of this Agreement.
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(d) The Employee shall be entitled to receive an allowance for use of
an automobile, parking and such other perquisites, as from time to time are made
available by the Company to its executive officers.
8. TRADE SECRETS AND CONFIDENTIAL INFORMATION. During Employee's
employment and for a period of one (1) year thereafter, the Employee shall treat
as trade secrets all confidential information with respect to the business of
the Company acquired by him at any time prior to or during the term of this
Agreement, and shall at no time during his employment, and for a period of one
(1) year thereafter, use, directly or indirectly, any such trade secrets or
confidential information for his own benefit nor disclose it, nor any part of
it, to any other person, firm, corporation or organization not connected with
the Corporation, except as authorized in writing by the Corporation.
9. TERMINATION OF AGREEMENT. This Agreement shall terminate prior to
December 31, 1998, only upon the earliest to occur of the following events:
(a) the disability (as defined below) of the Employee;
(b) the death of the Employee;
(c) delivery of written notice to the Employee by the Employer
terminating this Agreement for Cause (as defined below); and
(d) delivery of written notice to the Company by the Employee
terminating this Employment Agreement.
For the purpose of this Employment Agreement, the term "disability" shall mean
the inability of the Employee, due to illness, accident or any other physical or
mental incapacity, to perform his duties hereunder, continuing for a period of
six successive months. Any dispute regarding the existence, extent or
continuance of a disability of the Employee shall be resolved by the
determination of a majority of a Board of Arbitrators consisting of three
physicians, one selected by the Employee, one selected by the Company, and one
selected by the physicians selected by the Employee and the Company. All of the
physicians so selected shall be members of the Colorado Medical Association. The
decision of such Board of Arbitrators shall be binding upon the parties to this
Employment Agreement, and the cost of such arbitration, if any, shall be borne
by the Company. For purposes hereof, termination for disability shall occur at
the end of such six month period or, in the event of a dispute, upon a
determination of disability by the Board of Arbitrators. For purposes hereof,
"Cause" means (i) conduct which causes material harm to the Company; (ii) the
willful and continued absence of Employee (other than by reason of disability or
death), (iii) Employee's abandonment of his duties and responsibilities, (iv)
conviction of the Employee for a felony involving moral turpitude, or (v) fraud,
misappropriation or embezzlement of corporate funds. In the event that the
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grounds for termination for cause specified in the written notice are not fraud,
embezzlement or conviction of a specified felony and are capable of being cured,
the Employee shall have thirty days from his receipt of any such notice to cure
the actions or omissions specified in the notice.
In the event of termination by reason of death or disability and
provided the Company has not otherwise provided the Employee with life or
disability insurance or other benefit plan for such occurrences, the Company
shall pay to the Employee severance pay equal to 6 months salary. Except as
otherwise provided herein, upon termination of this Agreement as provided in
this Paragraph 9, the Company shall not have any further obligation to make
any payments to, or bestow any benefits on, the Employee from and after the
date of such termination.
10. ASSISTANCE IN LITIGATION. For one full year after the expiration or
termination of this Agreement, Employee shall, upon reasonable notice and
payment of expenses, furnish such information and assistance as the Company may
reasonably require in connection with any litigation which the Company or any of
its subsidiaries or affiliates is or may become, a party.
11. NOTICES. All notices, demands, elections, opinions or requests
(however characterized or described) required or authorized hereunder shall be
deemed given sufficiently if in writing and sent by hand delivery or registered
or certified mail, return receipt requested and postage prepaid, or by telex,
telegram or cable to, in the case of the Company:
THE VINTAGE GROUP USA, LTD.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
and in the case of the Employee:
XXXXXXX X. XXXXXXXXXXXX
0000 Xxxx Xxxxxxxxxxx, Xxx. 00-X
Xxxxxx, Xxxxxxxx 00000
12. NONCOMPETE. During the term of this Agreement, Employee shall not
become employed or assume any position similar to that of chief executive
officer,
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director, partner or principal, or otherwise engage or invest in any similar
business as that of the Company (except as to an investment in a publicly
held corporation of not more than five (5%) of its outstanding capital
stock). For a period of one year immediately following the cancellation or
termination of this Agreement for any reason, Employee shall not become
employed or assume any position similar to that of chief executive officer,
director, partner, principal, owner or senior manager which during said
one-year period develops a golf course, driving range or other golf facility
within a 10-mile radius of the location of any golf course, driving range or
other golf facility in which the Company then directly or indirectly owns an
interest (except as to an investment in a publicly held corporation of not
more than five percent (5%) of its outstanding capital stock). To clarify the
foregoing, the maintenance of an office at which Employee is a principal in
the golf course development business within said 10-mile radius as the sole
consideration, or the engagement of Employee at less than a senior management
position, as the sole consideration, will not constitute a breach of the
foregoing sentence.
13. ASSIGNMENT OF AGREEMENT. The Employee may not assign or otherwise
transfer this Agreement or any of his rights or obligations hereunder without
the prior written consent of the Company, and any such attempted assignment
without such written consent shall be void and without force or effect.
14. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. This Agreement
and the representations, warranties, covenants and other agreements (however
characterized or described) by both parties hereto and contained herein or made
pursuant to the provisions hereof shall survive the execution and delivery of
this Agreement and any inspection or investigation made at any time with respect
to any thereof until any and all moneys, payments, obligations and liabilities
which either hereto shall have made, incurred or become liable for pursuant to
the terms of this Agreement shall have been paid in full.
15. FURTHER INSTRUMENTS. The Company and the Employee shall execute and
deliver any and all such other instruments and shall take any and all such other
actions as may be reasonably necessary to carry the intent of this Agreement
into full force and effect.
16. SEVERABILITY.
(a) If any provision of this Agreement shall be held, declared or
pronounced void, voidable, invalid, unenforceable or inoperative for any reason
by any court of competent jurisdiction, government authority or otherwise, such
holding, declaration or pronouncement shall not affect adversely any other
provision of this Agreement, which shall otherwise remain in full force and
effect and be enforced in accordance with its terms and the effect of such
holding, declaration or pronouncement.
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(b) The parties hereto intend to confer and hereby confer
jurisdiction. to enforce the terms, covenants, and provisions contained herein
upon the courts of the State of Colorado.
17. WAIVER. All the rights and remedies of either party under this
Agreement are cumulative and not exclusive of any other rights and remedies
provided by law. No delay or failure on the part of either party in the
exercise of any right or remedy arising from a breach of this Agreement shall
operate as a waiver of any subsequent right or remedy arising from a subsequent
breach of this Agreement. The consent of any party where required hereunder to
any act or occurrence shall not be deemed to be a consent to any other act or
occurrence.
18. GENERAL PROVISIONS. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of Colorado. Except as
otherwise expressly stated herein, time is of the essence in performing
hereunder. This Agreement embodies the entire agreement and understanding
between the parties and supersedes all prior agreements and understandings
relating to the subject matter hereof, and this Agreement may not be modified or
amended or any term or provision hereof waived or discharged except in writing
signed by the party against whom such amendment, modification, waiver or
discharge is sought to be enforced. The headings of this Agreement are for
convenience in reference only and shall not limit or otherwise affect the
meaning thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the day and year first above written.
THE COMPANY:
THE VINTAGE GROUP USA, LTD., a
Colorado corporation
ATTEST:
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx
----------------------------------
Its: President
/s/ X. X. Xxxxxx
- ------------------------
Secretary
THE EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxxxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxxxxxx
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