AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(Xxxxx X. Xxxx)
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "AGREEMENT") is
dated as of July 25, 1997, between Golf Trust of America, Inc., a Maryland
corporation, having its principal place of business at 00 Xxxxx Xxxxx'x Xxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 (the "COMPANY"), and Xxxxx X. Xxxx, an
individual residing at the address set forth below his name on the signature
page hereof (the "EXECUTIVE").
COMPANY AND EXECUTIVE ENTER THIS AGREEMENT on the basis of the
following facts, understandings and intentions:
A. the Executive has been an executive of the Company employed under
that certain Employment Agreement (the "ORIGINAL AGREEMENT") dated as of
February 7, 1997 (the "COMMENCEMENT DATE");
B. the Executive desires to remain in the employ of the Company;
C. the Company values Executive's knowledge and familiarity with the
business of the Company and desires to assure itself of the continued services
of Executive; and
D. Company and Executive desire to amend and restate the Original
Agreement in order to provide for the accelerated vesting of stock-based
compensation under certain circumstances.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the Company and Executive agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive, and
the Executive hereby agrees to be employed by the Company, on the terms and
conditions set forth herein.
2. TERM. The employment of the Executive by the Company as provided in
Section 1 above will commence on the date set forth above (the "COMMENCEMENT
DATE"), and will terminate on the third anniversary of the Commencement Date
(such term being the "ORIGINAL TERM"), unless earlier terminated pursuant to the
provisions of Section 5 of this Agreement. On the final day of the Original
Term and on each one (1) year anniversary thereafter, the term of this Agreement
shall be extended automatically for one (1) additional year (each such extension
being a "RENEWAL TERM"), unless written notice that this Agreement will not be
extended is given by either party to the other one hundred eight (180) days
prior to the expiration of the Original Term or the then-current Renewal Term,
as the case may be. The Original Term and any Renewal Terms, in their full
duration, are herein individually referred to as "EMPLOYMENT TERMS," and the
period of the Executive's employment under
this Agreement consisting of the Original Term and all Renewal Terms, except as
may be terminated early pursuant to Section 5, is herein referred to as the
"EMPLOYMENT PERIOD."
3. POSITION.
(a) TITLE AND POSITION. During the Employment Period, the Executive
shall be employed as an executive officer of the Company with the title of
Executive Vice President or in such other executive position as the Board of
Directors of the Company (the "BOARD") may from time to time determine with the
consent of the Executive. In addition, for so long as the Executive is an
employee of the Company and is elected by the Company's shareholders, the
Executive hereby agrees to serve as a member of the Board. The Executive
understands that his position as a member of the Board is subject to the
nomination by the Company; PROVIDED that the Executive shall be a member of the
Board with a two (2) year term prior to the time the Company consummates any
public offering of securities and the Company agrees to use permissible
commercially reasonable efforts (subject to the exercise of its fiduciary
duties) to cause the nomination and election of the Executive to the Board
following any such public offering, subject to the terms and conditions of this
Agreement. In the performance of his duties as an officer, the Executive shall
be subject to the direction of the Board and the President, and shall not be
required to take direction from or report to any other person. Executive's
duties and authority shall be commensurate with his title and position with the
Company.
(b) PLACE OF EMPLOYMENT. During the term of this Agreement, the
Executive shall perform the services required by this Agreement at the Company's
place of business in Charleston, South Carolina; PROVIDED, HOWEVER, that the
Company may require the Executive to travel to other locations on the Company's
business.
(c) DUTIES. The Executive shall devote commercially reasonable
efforts and substantially full working time and attention to the promotion and
advancement of the Company and its welfare. The Executive shall serve the
Company faithfully and to the best of his ability, and shall perform such
services and duties in connection with the business, affairs and operations of
the Company as may be assigned or delegated to him from time to time by or
under, and in accordance with, the authority and direction of the Board. The
Company shall retain the right to direct and control the means and methods by
which the Executive performs the above services.
(d) OTHER ACTIVITIES. Except with the prior written approval of the
Board (which the Board may grant or withhold in its sole and absolute
discretion) and except as may be set forth in Section 9 of this Agreement the
Executive, during the Employment Period, will not (i) accept any other
employment, or (ii) engage, directly or indirectly, in any other business
activity (whether or not pursued for pecuniary advantage) that is or may be
competitive with, or that might place him in a competing position to, that of
the Company or any of its affiliates. Notwithstanding the foregoing, the
Company agrees that the Executive (or affiliates of the Executive) shall be
permitted (i) to undertake the activities set forth in Section 9, and (ii) to
make any other passive personal investment that is not in a business activity
competitive with the Company.
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4. COMPENSATION AND RELATED MATTERS.
(a) BASE SALARY. The Company shall pay the Executive a base salary
at a rate of One Hundred Fifty Thousand ($150,000) per year during the first
calendar year of the Original Term. The Executive's base salary for each
succeeding calendar year shall, at a minimum, be increased over the salary in
effect at the end of the immediately preceding year by a factor measured by the
increase, if any, in the Consumer Price Index for Wage Earners and Clerical
Workers (as published by the Bureau of Labor Statistics). The base salary may
further be increased, but not decreased, in succeeding years by an amount
determined by the Compensation Committee of the Board. All salary shall be paid
according to the standard payroll practices of the Company (regarding, E.G.,
timing of payments, standard employee deductions, income tax withholdings,
social security deductions, and etc.) as in place from time to time.
(b) BUSINESS EXPENSES. The Company shall reimburse the Executive for
personal expenditures incurred in connection with the conduct of the Company's
business upon presentation of sufficient evidence of such expenditures as may be
required by the Company's policies as in place from time to time.
(c) BENEFIT PLAN ELIGIBILITY. During the Employment Period, the
Executive shall be entitled to participate in any benefit plans that are made
generally available to executive officers of the Company from time to time,
including, without limitation, any deferred compensation, health, dental, life
insurance, long-term disability insurance, retirement, pension or 401(k) savings
plan. Nothing in this Section 4(c) is intended, or shall be construed, to
require the Company to institute or to continue any, or any particular, plan or
benefit.
(d) PERFORMANCE BONUS. The Compensation Committee of the Board may
establish and administer a performance bonus program for the Executive to
provide for payment of a cash bonus to the Executive upon the achievement of
certain performance objectives to be established by the Compensation Committee
for the Executive. If such a program is established, the Compensation Committee
of the Board shall monitor, review and modify the program from time to time as
necessary to reflect the Executive's contributions to the Company.
(e) STOCK INCENTIVE PLAN. The Compensation Committee of the Board
shall establish and administer one or more stock incentive plans in which the
Executive shall be eligible to participate according to their terms; PROVIDED,
HOWEVER, that the Board of Directors shall approve, prior to the completion of
the Company's initial public offering, a grant of options to the Executive to
purchase up to one hundred twenty-five thousand (125,000) shares of the
Company's common stock, which options shall become exercisable in three (3)
equal installments commencing upon the first anniversary of the date of grant
and each of the two (2) years thereafter, and shall be exercisable for ten (10)
years from the date of grant at the fair market value of the common stock on the
date of grant.
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(f) FRINGE BENEFITS. The Executive will be entitled to fringe
benefits as may be determined or granted from time-to-time by the Board or by
the President acting under the authority of the Board.
(g) VACATION AND HOLIDAYS. The Executive shall be entitled to four
(4) weeks (twenty (20) business days) of paid vacation time in each calendar
year on a pro-rated basis. The Executive shall be entitled to all paid Company
holidays.
(h) DIRECTORS AND OFFICERS INSURANCE AND INDEMNIFICATION. The
Company shall maintain insurance to insure the Executive against any claim
arising out of an alleged wrongful act by the Executive while acting as a
director or officer of the Company. The Company shall further indemnify and
exculpate from money damages the Executive to the fullest extent permitted under
applicable law.
(i) PERFORMANCE REVIEWS. At the end of each fiscal year, the Board
or the Compensation Committee thereof will review the Executive's job
performance and will provide the Executive a written review of the Executive's
job performance during the prior year and implement any Board authorized
revisions to the Executive's position, compensation and duties at the Company;
PROVIDED, HOWEVER, that the provisions set forth in this Agreement with respect
to the Executive's compensation, and other terms and conditions of the
Executive's employment at the Company shall not be modified by the Board in a
manner which would result in less favorable or less beneficial terms or
conditions thereof being imposed on the Executive without the Executive's full
concurrence and consent.
5. TERMINATION. The Executive's employment hereunder shall be, or may
be, as the case may be, terminated under the following circumstances:
(a) DEATH. The Executive's employment under this Agreement shall
terminate upon his death.
(b) DISABILITY. The Executive's employment under this Agreement
shall terminate upon the Executive's physical or mental disability or infirmity
which, in the opinion of a competent physician selected by the Board, renders
the Executive unable to perform his duties under this Agreement for more than
one hundred twenty (120) days during any one hundred eighty (180) day period.
(c) EMPLOYMENT-AT-WILL; TERMINATION BY COMPANY FOR ANY REASON. The
Executive's employment hereunder is "at will" and may be terminated by the
Company at any time with or without Good Reason (as defined in Section 7(c)
below), by a majority vote of all of the members of the Board of Directors upon
written Notice of Termination (as defined below) to Employee, subject only to
the severance provisions specifically set forth in Section 7 below.
(d) VOLUNTARY RESIGNATION. The Executive may voluntarily resign his
position and terminate his employment with the Company at any time by delivery
of a written notice of resignation to the Company (the "NOTICE OF RESIGNATION").
The Notice of
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Resignation shall set forth the date such resignation shall become effective
(the "DATE OF RESIGNATION"), which date shall in any event, be at least ten (10)
days and no more than thirty (30) days from the date the Notice of Resignation
is delivered to the Company. The Notice of Resignation shall be sufficient
notice under Section 2 above to prevent the automatic extension of this
Agreement, if timely given according to the terms of Section 2.
(e) NOTICE. Any termination of the Executive's employment by the
Company shall be communicated by written Notice of Termination to the Executive.
For purposes of this Agreement, a "NOTICE OF TERMINATION" shall mean a notice
that indicates the specific termination provision in this Agreement relied upon
and 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. The Notice of Termination shall be sufficient notice
under Section 2 above to prevent the automatic extension of this Agreement, if
timely given according to the terms of Section 2.
(f) DATE OF TERMINATION. "DATE OF TERMINATION" shall mean (i) if the
Executive's employment is terminated by his death, the date of his death; (ii)
if the Executive's employment is terminated by reason of his disability, the
date of the opinion of the physician referred to in Section 5(b), above; (iii)
if the Executive's employment is terminated by the Company for Good Reason or
without Good Reason by the Company pursuant to Section 5(c) above, the date
specified in the Notice of Termination; and (iv) if the Executive voluntarily
resigns pursuant to Section 5(d) above, the Date of Resignation set forth in the
Notice of Resignation.
6. OBLIGATIONS UPON TERMINATION.
(a) RETURN OF PROPERTY. The Executive hereby acknowledges and agrees
that all personal property and equipment furnished to or prepared by the
Executive in the course of or incident to his employment belongs to the Company
and shall be promptly returned to the Company upon termination of the Employment
Period.
(b) COMPLETE RESIGNATION. Upon the expiration of the Employment
Period or any termination of employment under Section 5 above, the Executive
shall be deemed to have resigned from all offices and directorships then held
with the Company or any of its subsidiaries.
(c) SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND OTHER
PROVISIONS. The representations and warranties contained in this Agreement and
the parties' obligations under this Section 6 and Sections 7 through 9 and 16
through 18, inclusively, shall survive termination of the Employment Period and
the expiration of this Agreement.
(d) RELEASE. In exchange for the Company entering into this
Agreement, the Executive agrees that, at the time of his resignation or
termination from the Company, he will resign from the Board and will execute a
release acceptable to the Company of all liability of the Company and its
officers, shareholders, employees and directors to the Executive in connection
with or arising out of his employment with the Company, except with respect to
(i)
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any then-vested rights under any of the Company's stock incentive plans or in
connection with other stock-based compensation; (ii) any deferred compensation
held in trust under the Company's Deferred Compensation Plan; (iii) any
Severance Payments or benefits which may be payable to him under Section 7 or
other provisions of this Agreement; and (iv) any continuation of health or other
benefit plans in accordance with this Agreement or as may be required by law.
7. COMPENSATION UPON TERMINATION. The Executive shall be entitled to the
following post-termination payments:
(a) DEATH. If the Executive's employment is terminated by reason of
death pursuant to Section 5(a), the Company shall pay the Executive monthly his
base salary payable under Section 4(a), and one-twelfth (1/12) of the most
recent annual amount received, or entitled to be received, by the Executive as a
performance bonus payable under Section 4(d) (collectively the "SEVERANCE
PAYMENTS") for the greater of (i) two (2) years following the Date of
Termination, or (ii) the time period beginning on the Date of Termination and
ending on the final day of the final Employment Term determined according to
Section 2, above. In addition, immediately prior to the Date of Termination the
vesting of all stock-related compensation previously granted to the Executive
shall be accelerated such that none of such compensation is subject to
forfeiture and such that any stock options or similar rights previously granted
to the Executive shall become immediately vested and exercisable; PROVIDED,
HOWEVER, that all stock-related compensation shall be subject to the plan under
which it was granted, if any, as such plan may be amended from time to time in
accordance with its terms. In addition, during the full time period described
in the preceding clause (ii), the Executive, his estate and dependents shall
continue to participate, at their option, in all benefit plans described in
Section 4(c) and pursuant thereto shall receive benefits substantially
comparable to those in effect on the day before the Date of Termination, subject
to any reduction or termination of such benefits similarly affecting all
management personnel of the Company. Thereafter, at their own expense, the
Executive's dependents shall be entitled to any continuation of health insurance
coverage rights required by any applicable law.
(b) DISABILITY. If the Executive's employment is terminated by
reason of disability pursuant to Section 5(b), the Executive shall receive
Severance Payments for the greater of (i) two years following the Date of
Termination, or (ii) the time period beginning on the Date of Termination and
ending on the final day of the final Employment Term determined according to
Section 2, above; PROVIDED, HOWEVER, that Severance Payments otherwise payable
to the Executive under this Section 7(b) shall be reduced by the sum of the
amounts, if any, payable to the Executive at or prior to the time of any such
Severance Payment under any disability benefit plan of the Company. In
addition, immediately prior to the Date of Termination the vesting of all
stock-related compensation previously granted to the Executive shall be
accelerated such that none of such compensation is subject to forfeiture and
such that any stock options or similar rights previously granted to the
Executive shall become immediately vested and exercisable; PROVIDED, HOWEVER,
that all stock-related compensation shall be subject to the plan under which it
was granted, if any, as such plan may be amended from time to time in accordance
with its terms. In addition, during the full time period
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described in the preceding clause (ii), the Executive shall continue to
participate, at his option, in all benefit plans described in Section 4(c) and
pursuant thereto shall receive benefits substantially comparable to those in
effect on the day before the Date of Termination, subject to any reduction or
termination of such benefits similarly affecting all management personnel of the
Company. Thereafter, at the Executive's own expense, the Executive and his
dependents shall be entitled to any continuation of health insurance coverage
rights required by any applicable law.
(c) TERMINATION BY COMPANY.
(i) FOR GOOD REASON. If the Executive's employment is
terminated by the Company pursuant to Section 5(c) for Good Reason (as defined
below), the Company shall pay the Executive his base salary and any bonus due
and payable pursuant to Section 4(d) through the Date of Termination. In
addition, the Executive shall be entitled to retain such stock-based
compensation (including, without limitation, shares of restricted stock and/or
options to purchase securities of the Company granted or sold to the Executive
pursuant to the terms and conditions of any of the Company's stock incentive
plans or otherwise) as has vested as of the Date of Termination. At the
Executive's own expense, the Executive and his dependents shall also be entitled
to any continuation of health insurance coverage rights required by any
applicable law.
(ii) WITHOUT GOOD REASON. If the Executive's employment is
terminated by the Company pursuant to Section 5(c) without any Good Reason, the
Company shall pay the Executive the Severance Payment for the greater of (A) two
(2) years following the Date of Termination, or (B) the time period beginning on
the Date of Termination and ending on the final day of the final Employment Term
determined according to Section 2, above. In addition, immediately prior to the
Date of Termination the vesting of all stock-related compensation previously
granted to the Executive shall be accelerated such that none of such
compensation is subject to forfeiture and such that any stock options or similar
rights previously granted to the Executive shall become immediately vested and
exercisable; PROVIDED, HOWEVER, that all stock-related compensation shall be
subject to the plan under which it was granted, if any, as such plan may be
amended from time to time in accordance with its terms. In addition, during the
full time period described in the preceding clause (B), the Executive shall
continue to participate, at his option, in all benefit plans described in
Section 4(c) and pursuant thereto shall receive benefits substantially
comparable to those in effect on the day before the Date of Termination, subject
to any reduction or termination of such benefits similarly affecting all
management personnel of the Company. Thereafter, at the Executive's own
expense, the Executive and his dependents shall be entitled to any continuation
of health insurance coverage rights required by any applicable law.
(iii) "GOOD REASON" means a finding by the Board that (A) the
Executive materially breached any of the material terms of this Agreement; or
(B) the Executive acted with gross negligence, willful misconduct or
fraudulently in the performance of his duties hereunder.
(d) VOLUNTARY RESIGNATION.
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(i) FOR GOOD CAUSE. If the Executive terminates his employment
with the Company pursuant to Section 5(d) for Good Cause (as defined below), the
Company shall pay the Executive the Severance Payment for the greater of (A) two
(2) years following the Date of Termination, or (B) the time period beginning on
the Date of Termination and ending on the final day of the final Employment Term
determined according to Section 2, above. In addition, immediately prior to the
Date of Termination the vesting of all stock-related compensation previously
granted to the Executive shall be accelerated such that none of such
compensation is subject to forfeiture and such that any stock options or similar
rights previously granted to the Executive shall become immediately vested and
exercisable; PROVIDED, HOWEVER, that all stock-related compensation shall be
subject to the plan under which it was granted, if any, as such plan may be
amended from time to time in accordance with its terms. In addition, during the
full time period described in the preceding clause (B), the Executive shall
continue to participate, at his option, in all benefit plans described in
Section 4(c) and pursuant thereto shall receive benefits substantially
comparable to those in effect on the day before the Date of Termination, subject
to any reduction or termination of such benefits similarly affecting all
management personnel of the Company. Thereafter, at the Executive's own
expense, the Executive and his dependents shall be entitled to any continuation
of health insurance coverage rights required by any applicable law.
(ii) WITHOUT GOOD CAUSE. If the Executive terminates his
employment with the Company pursuant to Section 5(g) without Good Cause, the
Company shall have no obligation to compensate the Executive following the Date
of Resignation. However, the Executive shall be entitled to retain such
stock-based compensation (including, without limitation, shares of restricted
stock and/or options to purchase securities of the Company granted or sold to
the Executive pursuant to the terms and conditions of any of the Company's stock
incentive plans or otherwise) as has vested as of the Date of Termination. In
any event, at the Executive's own expense, the Executive and his dependents
shall be entitled to any continuation of health insurance coverage rights
required by any applicable law.
(iii) "GOOD CAUSE" means the occurrence, without the express
written consent of the Executive, of any of the following events, unless such
event is substantially corrected within ninety (90) days following written
notification by Executive to the Company that he intends to terminate his
employment under this Agreement because of such event:
(A) any material reduction or diminution in the compensation or benefits
of the Executive;
(B) any material breach or material default by the Company under any
material provision of this Agreement; or
(C) any Change in Control (as defined below).
(iv) "CHANGE IN CONTROL" means the occurrence of any of the
following events after the effective date of the first initial public offering
of the Company's common stock:
8
(A) the Board adopts a plan relating to the liquidation or dissolution of
the Company;
(B) a Person (as defined below) directly or indirectly becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 and Rule
13d-5 under the Securities Exchange Act of 1934) of more than
twenty-five percent (25%) of the total voting power of the total
outstanding voting securities of the Company on a fully diluted
basis;
(C) a Person directly or indirectly acquires or agrees to acquire all or
substantially all of the assets and business of the Company;
(D) for any reason during any period of two (2) consecutive years (not
including any period prior to the date of this Agreement) a majority
of the Board is constituted by individuals other than (1) individuals
who were directors immediately prior to the beginning of such period,
and (2) new directors whose election by the Board or nomination for
election by the Company's shareholders was approved by a vote of at
least two-thirds (2/3) of the directors then still in office who either
were directors immediately prior to the beginning of the period or
whose election or nomination for election was previously so approved.
(v) For purposes of this Section 7(d), "PERSON" means any
natural person, corporation, or any other entity; PROVIDED, HOWEVER, that the
term "Person" shall not include any shareholder or employee of the company on
the date immediately prior to the initial public offering of the Company's
common stock or any estate or member of the immediate family of such a
shareholder or employee.
(e) In the event of any termination pursuant to Section 5, the
Executive shall be entitled to retain any and all options to purchase securities
of the Company granted to the Executive pursuant to the terms and conditions of
any of the Company's stock incentive plans or otherwise that have vested as of
the date of such termination.
(f) Any Severance Payments made pursuant to this Section 7 shall be
payable in equal monthly installments over the required duration set forth
herein.
(g) If, in spite of the provisions above entitling the Executive to
benefits under any benefit plan, such benefits are not payable or provideable
under any such plan to the Executive, or to the Executive's dependents,
beneficiaries or estate, because the Executive is no longer deemed to be an
employee of the Company, then the Company shall independently pay or provide for
payment of such benefits for the remainder of the Employment Term.
(h) The continuing obligation of the Company to make any Severance
Payment to the Executive is expressly conditioned upon the Executive complying
and continuing to comply with his obligations and covenants under Sections 6, 8
and 9 of this
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Agreement following termination of his employment with the Company.
8. COVENANT OF CONFIDENTIALITY. In addition to the agreements set forth
in Section 6, the Executive hereby agrees that the Executive will not, during
the Employment Period or for one (1) year thereafter directly or indirectly
disclose or make available to any person, firm, corporation, association or
other entity for any reason or purpose whatsoever, any Confidential Information.
As used in this Agreement, "CONFIDENTIAL INFORMATION" means: non-public
information disclosed to the Executive or known by the Executive as a
consequence of or through his relationship with the Company, about the Company's
subsidiaries, affiliates and partners thereof, owners, customers, employees,
business methods, public relations methods, organization, procedures or
finances, including, without limitation, information of or relating to
properties that the Company or any of its affiliates, subsidiaries or partners
thereof owns or may be considering acquiring an interest in; PROVIDED, HOWEVER,
that the Executive shall not be obligated to treat as confidential, or return to
the Company copies of, any Confidential Information that (i) was publicly known
at the time of disclosure to the Executive, (ii) becomes publicly known or
available thereafter other than by any means in violation of this Agreement or
any other duty owed to the Company by any person or entity, or (iii) the
Executive is required by law to disclose to a third party.
9. COVENANT NOT TO COMPETE.
(a) The Executive agrees that during the Employment Period he will
devote substantially his full working time to the business of the Company and
will not engage in any competitive business. Subject to such full-time
requirement and the other restrictions set forth in this Section 9 and Section
3(d) above, the Executive shall be permitted to continue his existing business
investments and activities and may pursue additional business investments.
Without limiting the foregoing, the Executive specifically covenants that during
and after his employment with the company he shall not:
(i) compete directly with the Company in a business similar to
that of the Company;
(ii) compete directly or indirectly with the Company, its
subsidiaries and/or partners thereof with respect to any acquisition or
development of any real estate project undertaken or being considered by the
Company, its subsidiaries and/or partners thereof at the end of Executive's
Employment Period;
(iii) lend or allow his name or reputation to be used by or
in connection with any business competitive with the Company, its subsidiaries
and/or partners thereof; or
(iv) intentionally interfere with, disrupt or attempt to disrupt
the relationship, contractual or otherwise, between the Company, its
subsidiaries and/or partners thereof, and any lessee, tenant, supplier,
contractor, lender, employee or governmental agency or authority.
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(b) The provisions of this Section 9 shall survive for one year and
no longer following the termination of the Employment Period regardless of
whether such termination is for Good Cause or without Good Reason or otherwise;
PROVIDED, HOWEVER, that if the Executive resigns as a result of a Change in
Control (as defined in Section 7(d)) then the provisions of this Section 9 shall
not survive the Executive's resignation.
10. INJUNCTIVE RELIEF AND ENFORCEMENT. In the event of breach by the
Executive of the terms of Sections 6, 8 or 9, the Company shall be entitled to
institute legal proceedings to enforce the specific performance of this
Agreement by the Executive and to enjoin the Executive from any further
violation of Sections 6, 8 or 9 and to exercise such remedies cumulatively or in
conjunction with all other rights and remedies provided by law and not otherwise
limited by this Agreement. The Executive acknowledges, however, that the
remedies at law for any breach by him of the provisions of Sections 6, 8 or 9
may be inadequate. In addition, in the event the agreements set forth in
Sections 6, 8 or 9 shall be determined by any court of competent jurisdiction to
be unenforceable by reason of extending for too great a period of time or over
too great a geographical area or by reason of being too extensive in any other
respect, each such agreement shall be interpreted to extend over the maximum
period of time for which it may be enforceable and to the maximum extent in all
other respects as to which it may be enforceable, and enforced as so
interpreted, all as determined by such court in such action.
11. NOTICE. For the purposes of this Agreement, notices, demands and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered, when
transmitted by telecopy with receipt confirmed, or one day after delivery to an
overnight air courier guaranteeing next day delivery, addressed as follows:
If to the Executive: Xxxxx X. Xxxx
___________________________
___________________________
telecopy: _________________
If to the Company: Golf Trust of America, Inc.
00 Xxxxx Xxxxx'x Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
telecopy: (000) 000-0000
With a copy to: O'Melveny & Xxxxx LLP
Embarcadero Center West
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
telecopy: (000) 000-0000
or to such other address as any such party may furnish to the others from time
to time in writing in accordance herewith, except that notices of change of
address shall be effective only
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upon receipt.
12. SEVERABILITY. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect; PROVIDED, HOWEVER, that if any one or more of the terms contained in
Sections 6, 8 or 9 hereto shall for any reason be held to be excessively broad
with regard to time, duration, geographic scope or activity, that term shall not
be deleted but shall be reformed and constructed in a manner to enable it to be
enforced to the extent compatible with applicable law.
13. ASSIGNMENT. This Agreement may not be assigned by the Executive, but
may be assigned by the Company to any successor to its business and will inure
to the benefit and be binding upon any such successor.
14. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
15. HEADINGS. The headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
16. CHOICE OF LAW. This Agreement shall be construed, interpreted and the
rights of the parties determined in accordance with the laws of the State of
South Carolina (without reference to the choice of law provisions of the State
of South Carolina), except with respect to matters of law concerning the
internal corporate affairs of any corporate entity which is a party to or the
subject of this Agreement, and as to those matters the law of the jurisdiction
under which the respective entity derives its powers shall govern.
17. LIMITATION ON LIABILITIES. IF EITHER THE EXECUTIVE OR THE COMPANY IS
AWARDED ANY DAMAGES AS COMPENSATION FOR ANY BREACH OR ACTION RELATED TO THIS
AGREEMENT, A BREACH OF ANY COVENANT CONTAINED IN THIS AGREEMENT (WHETHER EXPRESS
OR IMPLIED BY EITHER LAW OR FACT), OR ANY OTHER CAUSE OF ACTION BASED IN WHOLE
OR IN PART ON ANY BREACH OF ANY PROVISION OF THIS AGREEMENT, SUCH DAMAGES SHALL
BE LIMITED TO CONTRACTUAL DAMAGES AND SHALL EXCLUDE (I) PUNITIVE DAMAGES, AND
(II) CONSEQUENTIAL AND/OR INCIDENTAL DAMAGES (E.G., LOST PROFITS AND OTHER
INDIRECT OR SPECULATIVE DAMAGES). THE MAXIMUM AMOUNT OF DAMAGES THAT THE
EXECUTIVE MAY RECOVER FOR ANY REASON SHALL BE THE AMOUNT EQUAL TO ALL AMOUNTS
OWED (BUT NOT YET PAID) TO THE EXECUTIVE PURSUANT TO THIS AGREEMENT THROUGH ITS
NATURAL TERM OR THROUGH ANY SEVERANCE PERIOD, PLUS INTEREST ON ANY DELAYED
PAYMENT AT THE MAXIMUM RATE PER ANNUM ALLOWABLE BY APPLICABLE LAW FROM AND AFTER
THE DATE(S) THAT SUCH PAYMENTS WERE DUE.
18. WAIVER OF JURY TRIAL. TO THE EXTENT APPLICABLE, EACH OF
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THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT.
19. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding between the Company and the Executive with respect to the
employment of the Executive by the Company as contemplated hereby and no
representations promises agreements or understandings written or oral, not
herein contained shall be of any force or effect. This Agreement shall not be
changed unless in writing and signed by both the Executive and the Board of
Directors of the Company.
20. EXECUTIVE'S ACKNOWLEDGMENT. The Executive acknowledges (a) that he
has had the opportunity to consult with independent counsel of his own choice
concerning this Agreement, and (b) that he has read and understands the
Agreement, is fully aware of its legal effect, and has entered into it freely
based on his own judgment.
IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the date and year first written above.
"COMPANY"
GOLF TRUST OF AMERICA, INC., a Maryland corporation
By: /s/ W. Xxxxxxx Xxxxx, XX
W. Xxxxxxx Xxxxx, XX
President and Chief Executive Officer
"EXECUTIVE"
/s/ Xxxxx X. Xxxx
XXXXX X. XXXX
Residing at:
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