EXHIBIT 10.11
EXECUTIVE EMPLOYMENT AGREEMENT
------------------------------
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is made and entered
into as of February 1, 2000 between GRACE DEVELOPMENT, INC., a Colorado
corporation (the "Company"), and XXXXXXXX XXXXXXXX XXXXXXX (the "Executive"), an
individual resident of the State of Georgia.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Company wishes to employ Executive as its Chairman of the Board
and Chief Executive Officer, and Executive wishes to serve in such position, on
the terms and conditions set forth herein;
WHEREAS, Executive desires to be assured of a secure minimum compensation
from Company for his services over a defined term;
WHEREAS, Company desires to assure the continued services of Executive on
behalf of Company on an objective and impartial basis and without distraction or
conflict of interest in the event of an attempt by any person to obtain control
of Company;
WHEREAS, the Company recognizes that when faced with a proposal for a
change of control of the Company, Executive will have a significant role in
helping the Company's Board of Directors (the "Board") assess the options and
advising the Board on what is in the best interests of the Company and its
stockholders, and it is necessary for Executive to be able to provide this
advice and counsel without being influenced by the uncertainties of his own
situation;
WHEREAS, Company desires to provide fair and reasonable benefits to
Executive on the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS, Company desires reasonable protection of its confidential business
and customer information which it has developed at substantial expense and
assurance that Executive will not compete with Company for a reasonable period
of time after termination of his employment with Company, except as otherwise
provided herein.
NOW, THEREFORE, in consideration of the premises and of the promises and
agreements hereinafter set forth, the parties hereto, intending to be legally
bound, do hereby agree as follows:
1. Term. The term (the "Term") of this Agreement shall begin on the date
----
that the Company's board of directors shall have approved and ratified this
Agreement and shall have elected Executive a member and Chairman of the
Company's board of directors and as Chief Executive Officer of the Company (the
"Effective Date") and shall continue in effect for a period of two (2) years
from the Effective Date (the "Initial Term"); provided, however, the Term shall
-------- -------
be reset automatically for two-year period (each an "Additional Term") on each
anniversary of
the Effective Date unless either party hereto gives written notice to the other
party not to so extend at least ninety (90) days prior thereto, in which case no
further extension shall occur; provided further, however, that notwithstanding
---------------- -------
any such notice by the Company not to extend, the Term shall not expire prior to
the expiration of twenty-four (24) months after the occurrence of a Change in
Control (as hereinafter defined).
2. Employment and Duties. The Executive shall serve as the Chairman of
---------------------
the Company's board of directors, and Chief Executive Officer (CEO) of the
Company, reporting only to the board, and shall have such powers and duties as
may from time to time be prescribed by the board, provided that such duties are
--------
consistent with the Executive's position as a senior executive of the Company.
The Company shall provide the Executive with a private office, secretarial and
administrative assistance, office equipment, supplies and other facilities and
services suitable to the Executive's position.
3. Salary. For all services to be rendered by the Executive pursuant to
------
this Agreement, the Company hereby agrees to pay the Executive a base salary
(the "Base Salary") at an annual rate of $240,000.00 per year during the first
year of the Initial Term and $295,000 during the second year of the Initial
Term, payable in accordance with the Company's payroll practices in effect from
time to time, and at a rate set by the compensation committee of the Company's
board of directors for any Additional Term. Any increase in Base Salary or other
compensation granted by the compensation committee of the Company's board of
directors shall in no way limit or reduce any other obligation of the Company
hereunder. Once established at an increased specified rate, the Base Salary
hereunder shall not thereafter be reduced, and the term Base Salary used in this
Agreement shall refer to the Base Salary as so increased.
4. Bonus and Special Option Award.
------------------------------
(a) In addition to his Base Salary, upon completion of the first year of
the Initial Term, Executive shall receive (i) a special bonus equal to
$240,000.00, payable on the first anniversary of Executive's employment with the
Company; and (ii) if Executive achieves each of the performance objectives set
by the board of directors within the first year of the Initial Term, the Company
will pay to Executive an incentive bonus as determined by the Board of Directors
that such performance objectives have been met. During the first year of the
Initial Term, the bonus payments to Executive as set forth in Section 4(a)(i)
and (ii) hereof shall be in lieu of his participation in any other incentive
bonus programs, for performance year 2000, that have been or may be established
for other senior executive officers of the Company. Thereafter, in the
discretion of the Company's board of directors, the Executive may be awarded for
each calendar year during the remainder of the Initial Term and any subsequent
Additional Term, an annual bonus (an "Annual Bonus") either pursuant to a bonus
or incentive plan of the Company or otherwise on terms no less favorable than
those awarded to other senior executive officers of the Company.
(b) The Company agrees to grant to Executive options to purchase 4,500,000
shares of the common stock, no par value, of the Company at an option exercise
price equal to $.35 per
2
share (the "Discounted Stock Options"). Such options shall be issued to
Executive pursuant to a plan to be adopted by the Company's board of directors,
and the terms of the grant shall provide, among other things, (i) that 33 1/3%
of the Discounted Stock Options so granted shall vest and become immediately
exercisable on the date of grant and thereafter, 33 1/3% shall vest as of the
last day of each succeeding calendar year following the date of grant until all
such options shall be fully vested; (ii) the Discounted Stock Options may be
exercised, once vested, up to ten years following the date of grant and (iii)
will be adjusted for splits and stock dividends as appropriate. Executive
acknowledges and agrees that the Discounted Stock Options to be granted pursuant
hereto are in lieu of any other stock option or stock incentive plans or
programs that may be granted or extended to other executive officers of the
Company during the Initial Term. In the event the executive is required, by the
IRS, to pay taxes prior to the executive exercising the options, the Company
will loan the executive an amount equal to assessed tax, at favorable rates,
until such time as the executive exercises these options. This loan will be
repaid pro rata as options are exercised. It also agreed that the stock related
to these options shall be registered for general trading at the first available
opportunity but in any case not later than other existing shareholders with
similarly restricted stock.
5. Benefits. The Executive shall be entitled to all benefits and conditions
--------
of employment provided by the Company to its executive officers, including,
without limitation, insurance, participation in the Company's vacation policy,
and participation in (except during the Initial terms as described in Section 4
hereof) any stock option or incentive compensation plans, pension, profit
sharing or other retirement plans, subject (in each case) to the terms of such
plans and any provisions, rules, regulations and laws applicable to such plans.
6. Reimbursement for Business Expenses. The Executive shall be reimbursed
-----------------------------------
for all reasonable out-of-pocket business expenses incurred by him in the direct
performance of his duties during his employment with the Company pursuant to the
terms of this Agreement and in accordance with the Company's policies in effect
from time to time.
7. Performance. The Executive shall devote all of his working time and
-----------
efforts to the business and affairs of the Company and to the diligent, faithful
and competent performance of the duties and responsibilities assigned to him
pursuant to this Agreement, except for vacations, weekends and holidays.
Notwithstanding the foregoing, the Executive may render charitable, civic and
outside board services so long as such services do not materially interfere with
the Executive's ability to discharge his duties, including, without limitation,
such outside services as the Executive is currently performing.
8. Non-Disclosure of Proprietary Information; Non-Competition; Non-
---------------------------------------------------------------
Solicitation.
------------
8.1. Confidential Information; Trade Secrets. As used in this
---------------------------------------
Agreement, the term "Confidential Information" shall mean valuable, non-
public, competitively sensitive data and information relating to the
Company's business or the business of any entity affiliated with the
Company, other than Trade Secrets
3
(as defined below). "Confidential Information" shall include, among other
things, information specifically designated as a Trade Secret that is,
notwithstanding the designation, determined by a court of competent
jurisdiction not to be a "trade secret" under applicable law. As used in
this Agreement, the term "Trade Secrets" shall mean information or data of
or about the Company or any entity affiliated with the Company, including,
without limitation, technical or non-technical data, formulas, patterns,
compilations, programs, devices, methods, techniques, drawings, processes,
financial data, financial plans, product plans, or lists of actual or
potential customers or suppliers, that (i) derive economic value, actual
or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic
value from their disclosure or use; and (ii) are subject of efforts that
are reasonable under the circumstances to maintain their secrecy. To the
extent that the foregoing definition is inconsistent with a definition of
"trade secret" under applicable law, the foregoing definition shall be
deemed amended to the extent necessary to render it consistent with
applicable law.
8.2. Non-Disclosure. The Executive will be exposed to Trade Secrets
--------------
and Confidential Information as a result of his employment by the Company
as provided in this Agreement. The Executive acknowledges and agrees that
any unauthorized disclosure or use of any of the Trade Secrets or
Confidential Information of the Company would be wrongful and would likely
result in immediate and irreparable injury to the Company. In
consideration of the Executive's right to employment (or continued
employment) under the terms of this Agreement, except as appropriate in
connection with the performance of his obligations under this Agreement,
the Executive shall not, without the express prior written consent of an
officer of the Company other than the Executive, redistribute, market,
publish, disclose or divulge to any other person or entity, or use or
modify for use, directly or indirectly, in any way for any person or
entity (i) any Confidential Information during the Term of this Agreement
and for a period of two (2) years after the final date of the Term of this
Agreement; and (ii) any Trade Secrets at any time (during or after the
Term of this Agreement) during which such information or data shall
continue to constitute a "trade secret" under applicable law. The
Executive agrees to cooperate with any reasonable confidentiality
requirements of the Company. The Executive shall immediately notify the
Company of any unauthorized disclosure or use of any Trade Secrets or
Confidential Information of which the Executive becomes aware. Such
confidential information may be disclosed as required by a court of law
without written authorization as noted above. In addition, information
which at one time might have been considered confidential but becomes
known in the public domain will no longer be considered confidential or a
trade secret.
8.3. Non-Competition. The Executive shall not, either directly or
---------------
indirectly, alone or in partnership, be connected or concerned with or
participate
4
in any other competing business or pursuit during any employment by
the Company, except that the Executive may own up to three percent of
the outstanding securities of a competing business the securities of
which are registered with the Securities and Exchange Commission if
such company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act").
8.4. Non-Solicitation. For a period of one (1) year immediately
----------------
following any termination of the Executive's employment, the Executive
will not solicit, or participate in any solicitation of, the
customers, suppliers, Executives or representatives of the Company (or
any of its subsidiaries or affiliated companies) to breach any
contract with the Company, terminate any relationship with the Company
or leave the Company. For purposes of this Agreement, customers shall
be limited to actual customers or actively-sought prospective
customers of the Company or any subsidiary or affiliate of the Company
with whom the Executive has had substantial contact during the Term of
this Agreement.
9. Certain Definitions.
-------------------
9.1. Accrued Compensation. For purposes of this Agreement,
--------------------
"Accrued Compensation" shall mean an amount which shall include all
amounts earned or accrued through the "Termination Date" (as
hereinafter defined) but not paid as of the Termination Date,
including, without limitation, (i) Base Salary, (ii) reimbursement for
reasonable and necessary expenses incurred by the Executive on behalf
of the Company during the period ending on the Termination Date, (iii)
vacation pay, (iv) bonuses, including, without limitation, any Annual
Bonus, and incentive compensation, and (v) all other amounts to which
the Executive is entitled under any compensation plan of the Company
at the times such payments are due.
9.2. Base Amount. For purposes of this Agreement, "Base Amount"
-----------
shall mean the Executive's annual Base Salary at the highest rate in
effect on, or at any time during the ninety (90) day period prior to,
the Termination Date and shall include all amounts of the Executive's
Base Salary that are deferred under any qualified and non-qualified
Executive benefit plans of the Company or any other agreement or
arrangement.
9.3. Cause. For purposes of this Agreement, a termination of
-----
employment is for "Cause" if the Executive has been convicted of a
felony or a felony prosecution has been brought against the Executive
or if the termination is evidenced by a resolution adopted in good
faith by two-thirds (2/3) of the Company's board of directors that the
Executive (i) intentionally and continually failed substantially to
perform his reasonably assigned duties with the Company (other than a
failure resulting from the Executive's incapacity due to physical or
5
mental illness or from the Executive's assignment of duties that would
constitute "Good Reason" (as hereinafter defined)) which failure
continued for a period of at least thirty (30) days after a written
notice of demand for substantial performance has been delivered to the
Executive specifying the manner in which the Executive has failed
substantially to perform, or (ii) intentionally engaged in illegal
conduct or gross misconduct which results in material economic harm to
the Company; provided, however, that no termination of the Executive's
-------- -------
employment shall be for Cause as set forth in clause (ii) above until
(x) there shall have been delivered to the Executive a copy of a
written notice setting forth that the Executive was guilty of the
conduct set forth in clause (ii) and specifying the particulars
thereof in detail, and (y) the Executive shall have been provided an
opportunity to be heard in person by the Company's board of directors
(with the assistance of the Executive's counsel if the Executive so
desires). Any termination of the Executive's employment by the
Company hereunder shall be deemed to be a termination other than for
Cause unless it meets all requirements of this Section 9.3.
9.4. Change in Control. For purposes of this Agreement, a
-----------------
"Change in Control" shall have occurred if:
(i) a majority of the directors of the Company shall be persons
other than persons: (A) for whose election proxies shall have been
solicited by the Company's board of directors, or (B) who are then
serving as directors appointed by the Company's board of directors to
fill vacancies on the board of directors caused by death or
resignation (but not by removal) or to fill newly-created
directorships;
(ii) a majority of the outstanding voting power of the Company
shall have been acquired or beneficially owned (as defined in Rule
13d-3 under the 1934 Act or any successor rule thereto) by any person
(other than the Company, a subsidiary of the Company, an affiliate of
the Company or the Executive) or Group (as defined below), which Group
does not include the Executive; or
6
(iii) there shall have occurred:
(A) a merger or consolidation of the Company with or into
another corporation (other than (1) a merger or consolidation
with a subsidiary of the Company or (2) a merger or consolidation
in which (a) the holders of voting stock of the Company
immediately prior to the merger as a class continue to hold
immediately after the merger at least a majority of all
outstanding voting power of the surviving or resulting
corporation or its parent and (b) all holders of each outstanding
class or series of voting stock of the Company immediately prior
to the merger or consolidation have the right to receive
substantially the same cash, securities or other property in
exchange for their voting stock of the Company as all other
holders of such class or series);
(B) a statutory exchange of shares of one or more classes
or series of outstanding voting stock of the Company for cash,
securities or other property;
(C) the sale or other disposition of all or substantially
all of the assets of the Company (in one transaction or a series
of transactions); or
(D) the liquidation or dissolution of the Company;
unless more than twenty-five percent (25%) of the voting stock (or the
voting equity interest) of the surviving corporation or the
corporation or other entity acquiring all or substantially all of the
assets of the Company (in the case of a merger, consolidation or
disposition of assets) or of the Company or its resulting parent
corporation (in the case of a statutory share exchange) is
beneficially owned by the Executive or a Group that includes the
Executive.
9.5. Group. For purposes of this Agreement, "Group" shall mean any
-----
two or more persons acting as a partnership, limited partnership, syndicate, or
other group acting in concert for the purpose of acquiring, holding or disposing
of voting stock of the Company.
9.6. Disability. For purposes of this Agreement, "Disability" shall
----------
mean a physical or mental infirmity which impairs or is likely to impair the
Executive's ability to substantially perform his duties with the Company for a
period of one hundred eighty (180) consecutive days and the Executive has not
returned to his full time employment prior to the Termination Date as stated in
the "Notice of Termination" (as hereinafter defined).
9.7. Good Reason.
-----------
9.7.1. For purposes of this Agreement, "Good Reason" shall
mean a good faith determination by the Executive, in the Executive's
sole and absolute
7
judgment, that any one or more of the following events has occurred,
without the Executive's express written consent:
(i) the assignment to the Executive of any duties
inconsistent with the Executive's position (including, without
limitation, status, titles and reporting requirements),
authority, duties or responsibilities as in effect immediately
prior to the date hereof, or any other action by the Company that
results in a material diminution in such position, authority,
duties or responsibilities, excluding for this purpose isolated
and inadvertent action not taken in bad faith and remedied by the
Company promptly after receipt of notice thereof given by the
Executive;
(ii) a reduction by the Company in the Executive's Base
Salary, as the same may be increased from time to time;
(iii) any failure to pay the Executive any compensation or
benefits to which he is entitled within five (5) days of the date
due;
(iv) the Company's requiring the Executive to be based
anywhere other than within fifty (50) miles of the Executive's
job location as of the date hereof, except for reasonably
required travel on the Company's business which is not greater
than such travel requirements prior to the date hereof;
(v) the taking of any action by the Company that would
materially adversely affect the physical conditions existing in
or under which the Executive performs his employment duties;
(vi) the insolvency or the filing (by any party, including
the Company) of a petition for bankruptcy by the Company;
(vii) any purported termination of the Executive's
employment for Cause by the Company which does not comply with
the terms of Section 9.3 hereof; or
(viii) any breach by the Company of any provision of this
Agreement.
9.7.2. The Executive's right to terminate his employment
pursuant to this Section 9 shall not be affected by his incapacity due
to physical or mental illness.
8
9.8. Notice of Termination. For purposes of this Agreement, "Notice
---------------------
of Termination" shall mean a written notice of termination from the Company of
the Executive's employment which indicates the specific termination provision in
this Agreement relied upon and which sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
9.9. Termination Date. For purposes of this Agreement, "Termination
----------------
Date" shall mean, in the case of the Executive's death, his date of death, in
the case of the Executive's voluntary termination, the last day of employment,
and in all other cases (other than in the case of a successor or an assignee,
which is provided for in Section 12.1 hereof), the date specified in the Notice
of Termination; provided, however, that if the Executive's employment is
-------- -------
terminated by the Company for Cause or due to Disability, the date specified in
the Notice of Termination shall be at least thirty (30) days from the date the
Notice of Termination is given to the Executive; and provided further that in
-------- -------
the case of Disability the Executive shall not have returned to the full-time
performance of his duties during such period of at least thirty (30) days.
10. Benefits and Payments Upon Termination of Employment.
----------------------------------------------------
10.1. Compensation and Benefits. If, during the term of this
-------------------------
Agreement, the Executive's employment with the Company shall be
terminated, the Executive shall be entitled to the following
compensation and benefits in the following circumstances:
(i) If the Executive's employment with the Company shall be
terminated by the Company for Cause or pursuant to Section 11.3
hereof, then the Company shall pay to the Executive all Accrued
Compensation.
(ii) If the Executive's employment with the Company shall be
terminated by the Company due to Disability or by reason of the
Executive's death, then the Company shall pay to the Executive all
Accrued Compensation and the restrictions on any outstanding incentive
awards (including, without limitation, restricted stock and granted
performance shares or units) under any incentive plan or arrangement
shall lapse and such incentive award shall become 100% vested, all
stock options, warrants and stock appreciation rights granted to the
Executive on or prior to the date of this Agreement shall become
immediately exercisable and 100% vested and, notwithstanding anything
to the contrary contained in the plan, agreement or other instrument
relating to such stock option, warrant or stock appreciation rights
with regard to the period of time within which such stock option,
warrant or stock appreciation rights must be exercised following the
Executive's termination of employment or provision of services to the
Company, all such stock options, warrants and stock appreciation
rights may be exercised at any time and from time to time until the
one (1) year anniversary of the Termination Date, and all performance
units granted to the Executive shall become 100% vested.
9
(iii) If the Executive's employment with the Company shall be
terminated (A) by the Company pursuant to Section 11.2 hereof or (B)
by the Executive pursuant to Section 11.4 hereof, then the Executive
shall be entitled to the following:
(1) the Company shall pay the Executive all Accrued
Compensation;
(2) the Company shall pay the Executive as severance pay
and in lieu of any further compensation for periods subsequent to
the Termination Date an amount in cash equal to two (2) times the
Base Amount;
(3) for twenty-four (24) months or such longer period as
may be provided by the terms of the appropriate program, practice
or policy, the Company shall, at its expense, continue on behalf
of the Executive and his dependents and beneficiaries the life
insurance, disability, medical, dental and hospitalization
benefits generally made available to the Company's executive
officers at any time during the 90-day period prior to the
Termination Date or at any time thereafter, provided that the
--------
Company's obligation hereunder with respect to the foregoing
benefits shall be limited to the extent that the Executive
obtains any such benefits pursuant to a subsequent employer's
benefit plans, in which case the Company may reduce the coverage
of any benefits it is required to provide the Executive hereunder
as long as the aggregate coverage's and benefits of the combined
benefit plans are no less favorable to the Executive than the
coverage's and benefits required to be provided hereunder;
(4) the restrictions on any outstanding incentive awards
(including, without limitation, restricted stock and
granted performance shares or units) under any
incentive plan or arrangement shall lapse and such
incentive award shall become 100% vested, all stock
options, warrants and stock appreciation rights
granted to the Executive on or prior to the date of
this Agreement shall become immediately exercisable
and 100% vested and, notwithstanding anything to the
contrary contained in the plan, agreement or other
instrument relating to such stock option, warrant or
stock appreciation rights with regard to the period of
time within which such stock option, warrant or stock
appreciation rights must be exercised following the
Executive's termination of employment or provision of
services to the Company, all such stock options,
warrants and stock appreciation rights may be
exercised at any time and from time
10
to time until the one (1) year anniversary of the
Termination Date, and all performance units granted to
the Executive shall become 100% vested; and
(5) Any excise tax incurred by executive by reason of
"parachute tax", because of a change in control will
be paid by the company as well as any other
extraordinary tax isssues occurring because of the
similar event:
(6) the Company shall, at its sole expense as
incurred, provide for a twenty-four (24) month period following
the Termination Date the Executive with office space and
secretarial assistance the same as or comparable to that provided
to the Executive immediately prior to the Termination Date.
(iv) The amounts provided for in subsection 10.1(i) shall be
payable to Executive in a lump-sum on the Termination Date. The
amounts provided for in subsection 10.1(iii) shall be payable to the
Executive in substantially equal bi-weekly installments for a twenty-
four (24) month period commending on the Termination Date and
otherwise in accordance with the Company's payroll practices in effect
from time to time.
(v) The Executive shall not be required to mitigate the amount
of any payment provided for in this Agreement by seeking other
employment or otherwise, and no such payment shall be offset or
reduced by the amount of any compensation or benefits provided to the
Executive in any subsequent employment, except as provided in
subsection 10.1(iii)(3).
10.2. No Severance. The severance pay and benefits provided
------------
for in this Section 10 shall be in lieu of any other severance or
termination pay to which the Executive may be entitled under any
Company severance or termination plan, program, practice or
arrangement.
10.3. Other Compensation and Benefits. The Executive's
-------------------------------
entitlement to any other compensation or benefits shall be determined
in accordance with the Company's Executive benefit plans and other
applicable programs, policies and practices then in effect.
11. Termination. The Executive's employment hereunder may be terminated
-----------
without any breach of this Agreement only in accordance with this Section 11.
11
11.1. Termination by the Company for Cause. The Company
------------------------------------
may terminate the Executive's employment at any time for Cause by
providing to the Executive a Notice of Termination, whereupon the
Executive shall be entitled to all of the benefits and payments
provided for under Section 10 hereof.
11.2. Termination by the Company without Cause. The
----------------------------------------
Company may terminate the Executive's employment at any time without
Cause by providing to the Executive a Notice of Termination, whereupon
the Executive shall be entitled to all of the benefits and payments
provided for under Section 10 hereof.
11.3. Termination by the Executive. The Executive's
----------------------------
employment may be terminated by the Executive at any time by providing
the Company with notice of such termination and specifying in the
notice the effective date of such termination, which shall not be less
than one hundred twenty (120) days after giving such notice, whereupon
the Executive's employment shall terminate on the date specified in
such notice and the Executive shall be entitled to all of the benefits
and payments provided for under Section 10 hereof; provided, however,
-------- -------
that following receipt of such notice, the Company may specify, in its
discretion, the date on which the Executive's employment shall
terminate so long as the date so specified is not more than one
hundred twenty (120) days after the date on which the Executive shall
have given notice, in which case the Executive's employment shall
terminate on the date so specified by the Company.
11.4. Termination by the Executive for Good Reason. For a
--------------------------------------------
one (1) year period following a Change of Control, the Executive's
employment may be terminated by Executive for Good Reason at any time
during such one (1) year period by providing the Company with a notice
of such termination and specifying in the notice the effective date of
such termination, whereupon the Executive's employment shall terminate
on the date specified in such notice and the Executive shall be
entitled to all of the benefits and payments provided for under
Section 10 hereof. In addition, during the term of this agreement,
without a change of control, the executive may terminate his
employment for Good Reason based on the criteria described in section
9.7.1.
11.5. Termination Upon Disability. The Company may
---------------------------
terminate the Executive's employment upon the Disability of the
Executive by providing to the Executive a Notice of Termination,
whereupon the Executive shall be entitled to all of the benefits and
payments provided for under Section 10 hereof.
11.6. Death. In the event of the Executive's death during
-----
his employment hereunder, the Executive's employment shall be
automatically terminated, whereupon the Executive shall be entitled to
all of the benefits and payments provided under Section 10 hereof.
12
12. Successors and Assigns.
----------------------
12.1. Assumption and Agreement. This Agreement shall be binding
------------------------
upon and shall inure to the benefit of the Company, its successors and
assigns, and the Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) or assign,
by agreement in form and substance satisfactory to the Executive, to
expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform it if no such succession or assignment had taken place.
Failure of the Company to obtain such assumption and agreement prior
to the effectiveness of any such succession or assignment shall be a
breach of this Agreement and shall entitle the Executive to
compensation from the Company in the same amount and on the same terms
as he would be entitled to hereunder if his employment had been
terminated pursuant to Section 11.2 hereof, except that for purposes
of implementing the foregoing, the date on which any such succession
or assignment becomes effective shall be deemed the Termination Date
hereunder. As used in the Agreement, Company shall mean the Company as
hereinbefore defined and any successor or assign that executes and
delivers the agreement provided for in this Section 12.1 or which
otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
12.2. Rights of Executive. This Agreement and all rights of the
-------------------
Executive hereunder shall inure to the benefit of and be enforceable
by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devises and legatees.
If the Executive should die while any amounts would still be payable
to him hereunder if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms
of this Agreement to the Executive's devise, legatee or other designee
or, if there be no such designee, to the Executive's estate.
13. Injunctive Relief. The Company and the Executive agree that damages
-----------------
are an inadequate remedy for, and that the Company or any successor to the
business of the Company would be irreparably harmed by, any breach of Section 8
of this Agreement, and that the Company, any successor to the business of the
Company or any permitted assignee of the Company shall be entitled to equitable
relief in the form of a preliminary or permanent injunction upon any breach of
Section 8 hereof.
14. Fees and Expenses. The Company shall pay all legal fees and related
-----------------
expenses incurred by the Executive as they become due as a result of or in
connection with the defense of any action brought against Executive by
BellSouth Company or its affiliated companies arising out of that certain
BellSouth Employee Agreement Regarding Intellectual Property and Nonsolicitation
of Employees dated February 20, 1978 (the "BellSouth Agreement"); provided,
however, that the Company shall have no such obligation, and Executive agrees to
reimburse the Company for any such fees and expenses so advanced to Executive,
if a final determination is
13
made by a court, arbitration panel or other judicial or administrative body that
Executive knowingly and willfully breached the terms of the BellSouth Agreement.
15. Notices. For the purpose of this Agreement, notices and all other
-------
communications to either party hereunder provided for in the Agreement shall be
in writing and shall be deemed to have been duly given when delivered in person
or mailed by first-class mail or airmail, postage prepaid, addressed:
If to the Executive:
Mr. Xxxxxxxx Xxxxxxxx Xxxxxxx
00000 Xxx Xxxx
Xxxxxxxxxx, XX 00000
If to the Company:
Grace Development, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
with a copy to:
Xxxxxx & Xxxxxx, LLP
2700 International Tower
000 Xxxxxxxxx Xxxxxx XX
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
or to such other address(es) as either party may have furnished to the other
party in writing in accordance with this Section.
16. Miscellaneous. No provision of this Agreement may be amended,
-------------
modified or waived unless such amendment, modification or waiver (i) is agreed
to in writing and is signed by the Executive and a representative of the
Company, its successor or permitted assignee and (ii) has been approved by the
board of directors of the Company, its successor or any permitted assignee of
the Company. No waiver by either party to this Agreement at any time of breach
by the other party of, or compliance by the other party with, any condition or
provision of this Agreement to be performed by the other party shall be deemed
to be a waiver of similar or dissimilar provisions or conditions at the same or
any prior or subsequent time. No agreements or representations, oral or
otherwise, expressed or implied, with respect to the subject matter of this
Agreement have been made by either party that are not expressly set forth in
this Agreement.
14
17. Validity. The invalidity or unenforceability of any provision or
--------
provisions of this Agreement shall not affect the validity or enforceability of
the other provisions of this Agreement, which other provisions shall remain in
full force and effect, nor shall the invalidity or unenforceability of a portion
of any provision of this Agreement affect the validity or enforceability of the
balance of such provision.
18. Counterparts. This document may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute a single agreement.
19. Headings. The headings of the paragraphs contained in this
--------
document are for reference purposes only and shall not, in any way, affect the
meaning or interpretation of any provision of this Agreement.
20. Applicable Law. This Agreement shall be governed by and
--------------
construed in accordance with the internal substantive laws, and not the choice
of law rules, of the State of Georgia.
21. Arbitration. Any controversy or claim arising out of or relating
-----------
to this Agreement or the breach thereof, other than the provisions of Section 9
hereof, shall, on the written request of one party served upon the other, be
settled by binding arbitration in Xxxxxx County, Georgia in accordance with the
commercial arbitration rules then recognized by the American Arbitration
Association, and judgment upon the award rendered may be entered and enforced in
any court having jurisdiction thereof.
23. Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties hereto and supersedes all prior agreements (if any),
understandings and arrangements (oral or written) between the parties hereto.
15
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and delivered by its duly authorized officer, and the Executive has
executed and delivered this Agreement, all as of the date first written above.
GRACE DEVELOPMENT, INC.
By: /s/ Xxxxx Xxxxxxxxx
--------------------------
Xxxxx Xxxxxxxxx
President
/s/ Xxxxxxxx Xxxxxxxx Xxxxxxx
-----------------------------
XXXXXXXX XXXXXXXX XXXXXXX
/s/ Xx. Xxx X. Xxxxxxxxxxx
-----------------------------
Compensation Committee Chair
Xx. Xxx X. Xxxxxxxxxxx, Director
16
