EXHIBIT 13
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 X. X. XXXXXX (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 $175,000.00 per year, payable at the rate of $7,291.67
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 executive vice president and
chief financial 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 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 executive vice president
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 regular
monthly dues (excluding assessments and food and bar charges unless
reimbursable pursuant to Section 6 hereof) for membership in the Cherry Hills
Country Club located at 0000 X. Xxxxxxxxxx Xxxx., Xxxxxx Xxxxx Xxxxxxx,
Xxxxxxxx 00000 as 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 a cellular phone, 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:
X. X. XXXXXX
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
12. NONCOMPETE. During the term of this Agreement, Employee shall not
become employed or assume any position similar to that of executive vice
president or chief financial officer, or otherwise engage or invest in any
similar business as that of the
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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 executive vice president or chief financial officer 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
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx
----------------------------------
Its: President
THE EMPLOYEE:
/s/ X. X. Xxxxxx
--------------------------------------
X. X. Xxxxxx
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