EXHIBIT (10)(b)
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment (the "Amendment") to the Employment Agreement
originally executed by Gateway American Properties, LLC, a Colorado limited
liability company ("GAPLLC"), and Xxxx X. Xxxxxx (the "Employee"), which
agreement was effective as of September 15, 1995, and a copy of which is
attached as Exhibit I hereto (the "Employment Agreement"), is effective as of
the 1st day of October, 1997 (the "Operative Date"), by and between Gateway
American Properties Corporation, a Colorado corporation ("GAPC-Colo"), and the
Employee.
EXPLANATORY STATEMENT
WHEREAS, pursuant to Section 15 of the Employment Agreement, GAPC-Colo has
become the assignee of any and all interests, rights, and obligations of GAPLLC
in and under the Employment Agreement.
WHEREAS, pursuant to Section 21 of the Employment Agreement, GAPC-Colo and
the Employee wish to amend the Employment Agreement to reflect the assignment of
any and all interests, rights, and obligations of GAPLLC in and under the
Employment Agreement.
WHEREAS, pursuant to Section 21 of the Employment Agreement, GAPC-Colo and
the Employee wish to amend the Employment Agreement to extend the term of the
Employment Agreement.
NOW THEREFORE, in consideration of the Explanatory Statement that shall be
deemed to be a substantive part of this Amendment, the mutual covenants,
promises, agreements, representations and warranties contained in this
Amendment, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby
covenant, promise, agree, represent and warrant as follows:
1. General Amendments. To the extent not inconsistent with the more specific
amendments to the Employment Agreement set forth in Section 2 herein, the
following amendments to the Employment Agreement shall apply generally:
a. Substitution of Name. All references in the Employment Agreement to
the phrase "Gateway American Properties, LLC, a Colorado limited
liability company" shall be replaced by the phrase "Gateway American
Properties Corporation, a Colorado corporation." Throughout the entire
Employment Agreement, references to the phrase "the Company" shall,
after the Operative Date of this Amendment, be interpreted as
references to GAPC-Colo and not to GAPLLC.
b. Substitution of "Managers". All references to the phrase "the
Managers" shall be replaced by the phrase "the Company's Board of
Directors."
2. Specific Amendments.
a. Amendment to Section 2 of the Employment Agreement. Section 2 of the
Employment Agreement is deleted in its entirety and replaced by the
following:
2. Term. The initial term of this Agreement commenced as of
September 15, 1995 (the "Effective Date"), and shall be in effect
through December 31, 2000, unless sooner terminated as hereinafter
set forth (the "Initial Term"). After expiration of the Initial
Term, and subject to the termination provisions hereinafter
contained, this Agreement will be automatically renewed for
additional one-year periods (each a "Renewal Term") as of December
31, 2000, and each year thereafter (each a "Renewal Date"); provided
neither party has given written notice to the other party of his or
its intent not to renew at least 90 days prior to any Renewal Date.
b. Amendment to Section 3(a) of the Employment Agreement. Section 3(a)
of the Employment Agreement is deleted in its entirety and replaced
by the following:
(a) Faithfully and diligently do and perform all such reasonable
acts and duties and furnish such reasonable services as the Board of
Directors and officers of the Company shall direct. In performing
the assigned duties, the Employee shall do and perform all acts in
the ordinary course of the Company's business (with such limits as
the Company's Board of Directors may prescribe necessary and
conducive to the Company's bests interests); and
c. Amendment to Section 5 of the Employment Agreement. Section 5 of the
Employment Agreement is deleted in its entirety and replaced by the
following:
5. Additional Incentives. The Company will provide Employee with
additional incentives including stock options, a retirement plan and
bonus benefits. Such additional incentives shall be consistent with
those additional incentives provided the Employee by Gateway
American Properties, LLC ("GAPLLC") prior to the assignment by
GAPLLC to the Company of any and all of its interests, rights, and
obligations in and under this Agreement.
d. Amendment to Section 6 of the Employment Agreement. Section 6 of the
Employment Agreement is amended by deleting the last sentence of
such section and replacing it with the following:
The Company shall pay the Employee any amount of the accrued salary
not paid by GAPLLC prior to, and as of, the date that GAPLLC
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assigned to the Company any and all of its interests, rights, and
obligations in and under this Agreement at such time as determined
by the Board of Directors of the Company, but in any event prior to
the termination of the Initial Term.
e. Amendment to Section 8 of the Employment Agreement. Section 8 of the
Employment Agreement is deleted in its entirety and replaced by the
following:
8. Automobile Expenses. Employee shall receive an amount of Seven
Hundred Fifty and 00/100 Dollars ($750.00) per month as
reimbursement for automobile expenses incurred in the use of
Employee's automobile for business purposes. Such reimbursement
amount represents a pro rata share of the following potential
expenses: lease, fuel, insurance and general maintenance.
f. Amendment to Section 9 of the Employment Agreement. Section 9 of the
Employment Agreement is amended by adding a new Section 9(c) thereto
stating as follows:
(c) In the event that GAPLLC, prior to the assignment by GAPLLC to
the Company of any and all of its interests, rights, and obligations
in and under this Agreement, had obtained any health insurance
policy and/or any life insurance policy in accord with the
provisions of this Section 9 (any such health insurance policy or
life insurance policy to be referenced hereinafter as an "Insurance
Policy"), the Company shall not be obligated to obtain another
separate such Insurance Policy to the extent that the Company
assumes and maintains the responsibilities and obligations of GAPLLC
under such pre-existing Insurance Policy.
g. Amendment to Section 13 (c) of the Employment Agreement. Section 13
(c) of the Employment Agreement is deleted in its entirety and
replaced by the following:
(c) Except as otherwise specifically provided in this Agreement,
including this paragraph (c) and Section 11, hereof, in the event of
the Employee's termination of employment for any reason, other than
a termination for cause or in the event of death, the Employee shall
receive in lump sum that amount of compensation provided in Section
4, hereof, based on the remaining term of this Agreement as
determined under Section 2, hereof. Notwithstanding the foregoing,
in the event of the Employee's termination of employment for cause,
as defined herein, then all obligations of the GAPC-Colo hereunder
shall terminate, and the Employee shall not be entitled to any
further payment.
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h. Amendment to Section 14 of the Employment Agreement. Section 14 of
the Employment Agreement is deleted in its entirety and replaced by
the following:
14. Indemnification. The parties recognize that the Company has
assumed the obligations of GAPLLC pursuant to which obligation
GAPLLC had agreed to indemnify the Employee from and against any
liability, cost, or expense, whatsoever, incurred by the Employee on
and under any loan or obligation obtained by or for benefit of
GAPLLC for which the Employee executed personally or executed
guarantees providing for the personal liability of the Employee
under such loans. A copy of the original Indemnification Agreement
between the Employee and GAPLLC is attached as Exhibit A hereto and
incorporated herein by reference. A copy of the Company's Assumption
of Indemnification Agreement between the Employee, GAPLLC, and the
Company is attached as Exhibit B hereto and incorporated herein by
reference.
3. Other Sections of the Employment Agreement. Except as generally amended by
Section 1 of this Amendment or specifically amended pursuant to the terms
of Section 2 of this Amendment, provisions of the Employment Agreement
shall be unchanged as a result of the execution of this Amendment; and
GAPC-Colo and the Employee shall be bound thereby as if GAPC-Colo and the
Employee had been the original signatories of the Employment Agreement.
4. Accrued, But Unpaid, Obligations. GAPC-Colo specifically represents and
warrants to the Employee that, as a consequence of the assignment by GAPLLC
to GAPC-Colo of any and all of its interests, rights, and obligations in
and under the Employment Agreement, GAPC-Colo shall, as of the Operative
Date of this Amendment, assume, and become liable, for any and all accrued,
but unpaid, obligations of GAPLLC to the Employee arising prior to, and as
of, the Operative Date under the terms of the Employment Agreement, as in
effect prior to the execution of this Amendment.
5. Company Approval. This Amendment has been approved by the Board of
Directors of GAPC-Colo, and been duly executed and delivered by the
Employee and on behalf of the GAPC-Colo by its duly authorized
representative.
6. Governing Law. This Amendment shall be construed and enforced in accordance
with the laws of the State of Colorado, excluding any conflict-of-laws rule
or law that might refer such construction or governance to the law of
another jurisdiction.
7. Severability. In the event a court of competent jurisdiction finds any of
the provisions of this Amendment to be prohibited or unenforceable, it is
the intent that such provision be reduced in scope by the court, but only
to the extent deemed necessary by the court to render the provision
enforceable. Moreover, to the extent that this Amendment may be executed
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and performance of the obligations of the parties may be accomplished
within the intent of this Amendment, the terms of this Amendment are
severable, and should any term or provision hereof be declared invalid or
become inoperative for any reason, such invalidity or failure shall not
affect the validity of any other term or provision hereof.
8. Counterparts; Telefacsimile Signatures. This Amendment may be executed in
multiple counterparts, each of which shall be deemed to be an original, but
which together shall constitute one and the same instrument. Signature
pages may be delivered by telefacsimile, each of which shall be binding and
enforceable, to the same effect as if the original signature pages were
executed and delivered.
9. Further Action. Each of the parties hereto agrees and covenants to take or
to cause to be taken such further actions, to execute, acknowledge, seal
and deliver such further instruments, documents and further assurances as
any one or more of the other parties may, from time to time, reasonably
request in order to effectuate fully the purposes, terms, and conditions of
this Amendment and to fulfill the intent of this Amendment and the
transactions contemplated herein and provided hereby.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective on the date first set forth above.
Gateway American Properties
Corporation, a Colorado corporation
By:/s/ Xxxxxx X. Deutsch
--------------------------------
Xxxxxx X. Deutsch, Its President
/s/ Xxxx X. Xxxxxx /s/ Xxxx X. Xxxxxx
----------------------------- --------------------------------
Xxxx X. Xxxxxx, Its Secretary Xxxx X. Xxxxxx, as "Employee"
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EXHIBIT (10)(b)
EMPLOYMENT AGREEMENT
THIS AGREEMENT, is effective the 15th day of September, 1995, by and
between GATEWAY AMERICAN PROPERTIES , LLC, a Colorado limited liability company
(the "Company"), and XXXX X. XXXXXX (the "Employee").
RECITALS:
WHEREAS, the Employee's services are valued by the Company and the Company
and the Employee desire to set forth in this Agreement the terms and conditions
for employment of the Employee by the Company during the term hereof; and
WHEREAS, the Employee and the Company agree that the Employee shall be
compensated on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed as follows:
1. Employment. Subject to the terms and conditions set forth in this
Agreement, the Company hereby engages and employs Employee and Employee hereby
accepts such engagement and employment with the Company. The primary place of
employment shall be at the Company's principal offices in Denver, Colorado, or
at such other location as the Company and the Employee may agree.
2. Term. The initial term of this Agreement shall be for a three (3) year
period and shall commence as of September 15, 1995 (the "Effective Date"), and
shall be in effect through September 14, 1998, unless sooner terminated as
hereinafter set forth (the "Initial Term"). After expiration of the Initial
Term, and subject to the termination provisions hereinafter contained, this
Agreement will be automatically renewed for additional one-year periods (each a
"Renewal Term") as of September 15th, 1998, and each year thereafter (each a
"Renewal Date"); provided neither party has given written notice to the other
party of their intent not to renew at least 90 days prior to any Renewal Date.
3. Duties. The Employee will, during the Initial Term and each Renewal
Term:
(a) Faithfully and diligently do and perform all such reasonable
acts and duties and furnish such reasonable services consistent with the
Employee's position as a Manager of the Company, and as the Managers of
the Company shall direct. In performing the assigned duties, the Employee
shall do and perform all acts in the ordinary course of the Company's
business (with such limits as the Managers of the Company may prescribe
necessary and conducive to the Company's best interests); and
(b) Devote the Employee's energies and skills to the business of the
Company and to the promotion of the Company's best interests. The Company
understands and recognizes that the Employee may have other business
activities which take a portion of Employee's time devoted to business
matters. Accordingly, Employee is required to expend on behalf of the
Company only such efforts as the Managers of the Company shall determine
to be appropriate for the proper conduct of Company affairs. Further, it
is acknowledged that the Employee may engage in or possess interests in
other business ventures of every nature and description, independently or
with others, some of which may compete with the business of the Company,
and the Company shall not have any right in or to any such independent
ventures or to the income or profits derived therefrom. For the purpose of
avoidance of costly and prolonged litigation which may result in undue
damage to the Employee and the Company, any claims based on any such
activities or conflicts of interest of the Employee are hereby expressly
waived by the Company.
4. Compensation. The Employee's salary, for the term provided in this
Agreement, shall be an amount of One Hundred Eight Thousand and 00/100 Dollars
($108,000.00) on an annual basis.
5. Additional Incentive. The Company will provide Employee with additional
incentives including stock options, a retirement plan and bonus benefits. The
Company's Managers shall, within one year from the Effective Date, determine the
exact form of such additional incentives, the formula to be utilized in
determining the monetary benefit, and the performance criteria in awarding such
work incentives.
6. Payments. Payment of compensation made under Section 4 shall be payable
monthly. All payments under this Agreement will be subject to withholding
deductions as may be required to be made pursuant to law, government regulation
or order, or by written agreement with, or written consent of, the Employee. The
parties acknowledge that the Employee has been employed by the Company prior to
the Effective Date, and Employee is entitled to approximately one year's accrued
salary related to this prior employment from July 1, 1994. The Company shall pay
the Employee the accrued salary at such time as determined by the Managers of
the Company, but in any event prior to the termination of the Initial Term.
7. Reimbursements. If Employee reasonably incurs any bona fide business
expenses in the performance of the duties authorized by the Company (other than
personal living expenses, including, but not limited to personal automobile
transportation and other such expenses, house mortgage, rental, meals and other
such expenses), the Company shall reimburse the Employee for reasonable expenses
subject to reasonable guidelines from time to time established by the Company
within thirty (30) days after the Employer receives an itemized statement as to:
a. the date that such expenses were incurred;
b. the business purpose for which such expenses were
incurred;
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c. the name of all persons who benefited from such
expenses; and
d. the amount of each expense.
Expenses shall only be reimbursed upon the furnishing of such information and
any other information which the Company deems necessary to verify the accuracy
and reasonableness of said expenditures, and to justify to the Internal Revenue
Service the deductibility of such expenditures. The Company shall provide
Employee with a corporate credit card for purposes of paying such business
expenses.
8. Automobile Expenses. Employee shall receive an amount of Seven Hundred
Fifty and 00/100 Dollars ($750.00) per month as reimbursement for automobile
expenses incurred in the use of Employee's automobile for business purposes,
including a pro rata share of the following expenses: lease, fuel, insurance and
general maintenance.
9. Health and Life Insurance Benefits. The Company shall provide Employee
with health insurance. In addition, the Company shall provide the following life
insurance policies on the life of the Employee:
(a) Split-Dollar. The Company shall purchase life insurance on the
life of the Employee having a face value in such amount as is available
for an annual premium payment of approximately Twenty-five Thousand
Dollars ($25,000.00) under a split-dollar arrangement with the Employee.
The Employee will be entitled to designate the beneficiary to receive any
and all insurance proceeds under such policy. The Company and Employee
shall cooperate and use its/his best efforts in obtaining such policy.
(b) Key Man Insurance. The Company shall purchase life insurance on
the life of the Employee having a face value of One Million Five Hundred
Thousand and 00/100 Dollars (($1,500,000.00) as "key man insurance." The
Company shall be designated as the beneficiary of such policy. The Company
and Employee shall cooperate and use its/his best efforts in obtaining
such policy.
10. Disability. The Company shall provide Employee with disability
insurance, and the Company and Employee shall cooperate and use its/his best
efforts in obtaining such disability insurance coverage. In the event that the
Employee is disabled, at the Company's election and upon 30 day's notice to the
Employee, the Company may terminate this Agreement, whereupon, the Employee's
obligation to perform such services will terminate. For purposes of this
Agreement, disability will be determined as provided under the Employee's
disability insurance policy. In the event of a determination of disability as
provided herein, the Employee shall continue to receive his salary for a period
of six (6) months commencing from the date of termination by the Company of
Employee's employment.
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11. Death. In the event of the death of the Employee during the term of
this Agreement, his employment pursuant to this Agreement shall terminate. In
the accounting between the Company and the Employee's personal representative,
the Employee's estate shall receive that amount of compensation provided in
Section 4, hereof, for the three year period following the Employee's date of
death, payable as provided in Section 6, hereof. This death benefit shall be
payable to Employee's estate for the period stated herein regardless of the
termination date of the Initial Term.
12. Absence from Work. Employee will be entitled to vacation each year, as
may be determined by the Company's Managers. During vacations, Employee shall be
entitled to receive his regular monthly compensation amount. Employee shall be
entitled to be absent from work due to sickness and holidays as determined by
the Company from time to time.
13. Termination.
(a) The Employee's employment with the Company shall be terminated:
(i) by reason of the Employee's death;
(ii) by reason of the Employee becoming disabled as set forth in
Section 10;
(iii)upon the voluntary termination of this Agreement by the Company
and the Employee; or
(iv) for cause.
(b) For purposes of this Agreement, "cause" shall be deemed to exist if
the Employee is shown to have engaged in any act of embezzlement, theft or fraud
upon the Company, any of its affiliated companies, or any of its customers or
clients. The Company shall have the sole discretion to determine whether the
conditions constituting a termination for cause have occurred, and the Employee
agrees that a decision by the Managers of the Company, that cause exists for
termination of the Employee, explained by the Company Managersby written notice
to the Employee, shall be binding on the Employee.
(c) Except as otherwise specifically provided in this Agreement, in the
event of the Employee's termination of employment for any reason, then all
obligations of the Company hereunder shall terminate.
14. Indemnification. The parties recognize that the Company has entered
into an agreement with the Employee to indemnify the Employee from and against
any liability, cost, or expense, whatsoever, incurred by the Employee on and
under any loan or obligation obtained by or for the benefit of the Company for
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which the Employee executed personally or executed guarantees providing for the
personal liability of the Employee under such loans. A copy of such
Indemnification Agreement is attached hereto as Exhibit A and incorporated
herein by reference.
15. Nonassignment. This Agreement is personal to the Employee and shall
not be assigned by the Employee. The Employee shall not hypothecate, delegate,
encumber, alienate, transfer or otherwise dispose of the Employee's rights and
duties hereunder. The Company may assign the Agreement without the Employee's
consent to any other entity who, in connection with such assignment, acquires
all or substantially all of the Company's assets or into or with which the
Company is merged or consolidated.
16. Waiver. The waiver by either party of a breach by the other party of
any provision of this Agreement shall not be construed as a waiver of a breach
of any other provision or any subsequent breach.
17. Severability. If any clause, phrase, provision or portion of this
Agreement or the application thereof to any person or circumstance shall be
invalid or unenforceable under any applicable law, such event shall not affect
or render invalid or unenforceable the remainder of this Agreement and shall not
affect the application of any clause, provision, or portion hereof to any other
person or circumstance.
18. Benefit. The provisions of this Agreement shall inure to the benefit
of the Company, its successors and assigns, and shall be binding upon the
Company and the Employee, his heirs, personal representatives and successors and
assigns, including without limitation the Employee's estate and the executors,
administrators, or trustees of such estate.
19. Relevant Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Colorado.
20. Notices. All notices, requests, demands and other communications in
connection with this Agreement shall be made in writing and shall be deemed to
have been given when delivered by hand or 48 hours after mailing at any general
or branch United States Post Office, by registered mail, postage prepaid, return
receipt requested, addressed as follows, or to such other address as shall have
been designated in writing by the addressee:
(a) If to the Company:
Gateway American Properties Corporation
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
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(b) If to the Employee:
Xxxx X. Xxxxxx
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
21. Entire Agreement. This Agreement sets forth the entire understanding
of the parties and supersedes all prior agreements, arrangements, and
communications, whether oral or written, pertaining to the subject matters
hereof. This Agreement may only be amended or modified by a writing signed by
both parties. Oral promises or assurances are not effective to enforce, amend or
modify this Agreement.
22. Company Approval. This Agreement has been approved by the Managers of
the Company, and has been duly executed and delivered by the Employee and on
behalf of the Company by its duly authorized representative.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective on the date first set forth above.
The "Company"
GATEWAY AMERICAN PROPERTIES, LLC, a
Colorado limited liability company
By:/s/ Xxxxxx X. Deutsch
---------------------------
Xxxxxx X. Deutsch, Manager
By:/s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx, Manager
By:/s/ Xxxx X. Xxxxxx
---------------------------
Xxxx X. Xxxxxx, Manager
The "Employee":
/s/ Xxxx X. Xxxxxx
---------------------------
Xxxx X. Xxxxxx
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EXHIBIT A
COPY OF INDEMNIFICATION AGREEMENT
(see attached)
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