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EXHIBIT 10.8
FORM OF
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of
_____________, 1998 by and between PRESIDIO GOLF TRUST, a Maryland real estate
investment trust (the "Trust"), PRESIDIO GOLF LIMITED PARTNERSHIP, a Delaware
limited partnership (the "Partnership" and, together with the Trust, the
"Company"), and Xxxxxx X. Xxxxxxx (the "Employee").
RECITALS
A. The Company is the owner of golf courses and golf course resorts.
B. The Trust is effecting an initial public offering ("IPO") of shares
of beneficial interest of the Trust pursuant to a registration statement on Form
S-11 filed with the Securities and Exchange Commission ("Registration
Statement").
C. The Employee has extensive experience in the acquisition, ownership
and financing of golf courses.
D. The Company desires to employ the Employee as its President and
Chief Executive Officer, and the Employee desires to be so employed by the
Company, all on the terms and conditions hereinafter set forth.
AGREEMENTS
In consideration of the premises and the mutual covenants hereinafter
set forth, the parties agree as follows:
1. AGREEMENT OF EMPLOYMENT; EFFECTIVE DATE. The Company agrees to
employ the Employee, and the Employee agrees to be employed by the Company, upon
the terms and conditions hereinafter set forth. None of the provisions of this
Agreement shall become effective until the date on which the IPO is consummated
(the "Effective Date").
2. TERM. The initial term of this Agreement shall be for a period of
three (3) years from and after the Effective Date (the "Initial Term"), unless
terminated sooner as provided in this Agreement. At the end of the Initial Term
or at the end of any Extended Term (as hereinafter defined), the term of this
Agreement shall be extended for an additional one-year period (the "Extended
Term"), unless any party hereto gives a notice not less than 30 days prior to
the end of the Initial Term or the Extended Term, as the case may be. The period
commencing with the Effective
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Date and ending on the date this Agreement expires or is terminated is
hereinafter referred to as the "Term."
3. DUTIES.
(a) During the Term, the Employee shall serve as the Trust's
President and Chief Executive Officer and shall have the power and
authority of the President and Chief Executive Officer as set forth in
the bylaws of the Trust as in effect on the Effective Date, subject to
the supervision and direction of the Board of the Trustees of the Trust
("Board of the Trust").
(b) The Employee agrees to devote substantially all of his
business time and his best efforts to the performance of his duties
under this Agreement. Notwithstanding the foregoing provisions of this
Paragraph 3(b), the Employee may devote reasonable time to activities
other than those required under this Agreement, including activities
involving charitable and similar types of activities, to the extent
such activities do not, in the judgment of the Board of the Trust,
inhibit or prohibit the performance of the Employee's duties under this
Agreement or conflict in any material way with the business of the
Company; provided, that except as specified above, the Employee may not
accept employment with any other individual or entity, or engage in any
other venture which is directly or indirectly in conflict or
competition with the then existing business of the Company. The parties
agree that the provisions of this Paragraph 3(b) shall not limit in any
manner the ability of Employee to serve as a member or director of
Xxxxxx Xxxxxx Golf Management LLC.
(c) The Employee's principal base of operation for the
performance of his duties and responsibilities under this Agreement
shall be the offices of the Company in the San Francisco, California
area.
4. COMPENSATION OF EMPLOYEE. For the services rendered by the
Employee to the Company under this Agreement during the Term, the Company shall
compensate the Employee as follows:
(a) BASE SALARY. The Company shall pay the Employee for his
services salary at the rate of $175,000 per annum (the "Base
Salary") payable in installments in accordance with the customary
payroll practices of the Company applicable to all executives. Such
Base Salary shall be subject to annual merit increases at the
discretion of the Compensation Committee of the Board of the Trust (the
"Compensation Committee").
(b) BONUS. The Employee shall be eligible for a discretionary
annual bonus ("Annual Bonus") based upon his performance, any increase
in the share price, funds from operations or any other criteria deemed
relevant by the Compensation Committee. The amount of any Annual Bonus
shall be determined by the Compensation Committee in its sole
discretion. The Annual Bonus shall be paid at the same time as annual
bonuses are paid to other executives of the Company generally for each
year, but in no event later than fifteen
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(15) days after the completion of the audit of the financial statements
of the Company by the Company's outside independent accounts for such
year.
(c) SUPPLEMENTAL BONUS. The Company shall pay the Employee a
supplemental bonus ("Supplemental Bonus") if in the opinion of the
Compensation Committee, Employee has during a year expended extra
effort on acquisitions, financing or other transactions outside of the
Company's ordinary course of business. The amount of any Supplemental
Bonus shall be determined by the Compensation Committee in its sole
discretion. The Supplemental Bonus shall be paid at the same time as
bonuses are paid to other executives of the Company generally for each
year, but in no event later than fifteen (15) days after the completion
of the audit of the financial statements of the Company by the
Company's outside independent accountants for such year.
(d) INITIAL OPTION. The Trust shall grant to the Employee on
the Effective Date an option to purchase 65,000 shares of beneficial
interest of the Trust at an exercise price equal to the price at which
such shares are initially sold to the public pursuant to the IPO, such
options to be exercisable in three equal installments on the first,
second and third anniversaries of the Effective Date. Such option (i)
shall be issued pursuant to the terms and conditions of the Trust's
1998 Employee Share Option and Award Plan (the "Option Plan"); and (ii)
shall not be intended to be an "incentive share option" as such term is
defined in Section 422 of the Internal Revenue Code of 1986.
Further, in the event of a Change of Control (as hereinafter
defined), the Board of Directors shall make every commercially
reasonable effort to have the Company (or any other surviving company
in a transaction or series of transactions designed to effectuate a
change in control) substitute its options or any unexercised portion of
the options granted Employee upon appropriate and equitable terms and
provide for a period of exercise equal to the remaining term of the
option (i.e., the option exercise period will not expire upon a
termination of employment).
Formal documentation of such option shall be delivered to the
Employee on the Effective Date.
(e) ADDITIONAL OPTIONS. The Employee will be eligible for
consideration for the grant of additional options under the Option Plan
and any other employee stock option plan adopted by the Company based
upon the Employee's performance and the performance of the Company.
(f) INITIAL RESTRICTED SHARES. Employee shall receive a
restricted share grant of 25,000 shares upon completion of the first
quarter following the fiscal year 1999 in three (3) equal annual
installments if (1) the Trust has an increase in the funds from
operations per share for the most recent fiscal year of at least 12.5%
compared to the funds from operations per share as set forth in the
Company's published reports for the prior year and (2) the Trust
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has an increase in the funds from operations per share in the first
quarter following the completion of the most recent fiscal year
compared with the corresponding quarter in the prior year. Upon
completion of the first quarter of 2000 and 2001, grants, with respect
to shares which have not theretofore been made, shall be made, if on a
cumulative basis, the Trust has met the standards for such share
grants. With respect to (1) above, the first calculation year is 1999
compared to pro forma 1998 as set forth in the final prospectus
relating to the IPO. Each award shall (1) be issued under the terms of
the Company's 1998 Restricted Share Award Plan, (2) be made as soon as
practicable after funds from operations for a year or quarter has been
determined, and (3) be subject to vesting by continued employment by
the Company in equal installments over a 3-year period.
Formal documentation of such restricted share award shall be
delivered to Employee on the Effective Date.
(g) ADDITIONAL RESTRICTED SHARE AWARDS. Employee will be
eligible for consideration by the Compensation Committee for the grant
of additional restricted share awards under the Company's 1998
Restricted Share Award Plan based upon Employee's performance and the
performance of the Company.
(h) EMPLOYEE BENEFITS. The Employee shall be entitled to
participate in any "Employee Benefit Plan," as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended
(each a "Plan") covering employees of the Company generally, upon
meeting the eligibility conditions for Plan participation as
established under the terms of the applicable Plan. The Employee shall
also be entitled to participate in other benefit plans that the Company
provides to other senior executive officers of the Company generally,
subject to the terms and conditions applicable to such benefit.
(i) VACATION. The Employee shall be entitled to three (3)
weeks of paid vacation each fiscal year of the Company.
(j) WITHHOLDING. All compensation payable to the Employee
shall be reduced by Social Security taxes and withholding taxes for
which Employee is obligated and any other taxes that may be lawfully
levied by any governmental authority which the Company may be required
by law from time to time to withhold.
5. REIMBURSEMENT. The Company shall reimburse the Employee for the
normal and reasonable expenses incurred by him during the Term in connection
with the performance of his duties hereunder. The Employee shall furnish the
Company with such records and receipts as are required to substantiate such
expenses in accordance with Company policy.
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6. DEATH OR DISABILITY.
(a) If the Employee dies, this Agreement shall automatically
terminate. In such event, the Employee's legal representative shall be
entitled to receive from the Company (i) such death benefit payment, if
any, as is provided under the Company's personnel policies in effect at
the time of his death for payment to legal representatives of the
Company's executive employees generally, and (ii) all other employee
benefits earned by the Employee that have fully accrued and vested but
not been paid as of the date of the Employee's death (including any
earned but unpaid vacation pay).
(b) If the Employee suffers a permanent disability (as
hereinafter defined), the Company may terminate this Agreement by
giving written notice to the Employee. For the purposes hereof,
"permanent disability" shall mean a "permanent disability" as defined
in any long-term disability policy maintained by the Company which
covers Employee and, in the event that the Company does not maintain a
long-term disability policy covering Employee, "permanent disability"
shall mean any illness, injury or infirmity which renders or is
reasonably expected to render the Employee unable to perform his duties
hereunder for a period of ninety (90) days in any three hundred and
sixty (360) day period. The Company shall give the Employee thirty (30)
days' advance notice of termination in the event the termination occurs
as a result of an illness, injury or infirmity which is reasonably
expected to render the Employee unable to perform his duties hereunder
for the aforesaid period.
In the event the Company and the Employee do not agree that
the Employee is suffering from an illness, injury or infirmity which is
reasonably expected to render the Employee unable to perform his duties
hereunder for the aforesaid period, then the Chairman of the Board of
Trustees of the Trust and the Employee (or the Employee's legal
representative if the Employee is unable to act) shall together select
a licensed physician who shall, within thirty (30) days from the date
upon which he or she is selected, make a conclusive determination as to
whether or not the Employee is suffering from a permanent disability.
In the event that the parties are unable to agree upon the selection of
a physician, the Employee (or the Employee's legal representative if
the Employee is unable to act) and the Company shall each separately
select, within fifteen (15) days from the date such disagreement
arises, a licensed physician. Together, the physicians so selected
shall designate a third licensed physician who shall, within fifteen
(15) days from the date of his selection, make the conclusive
determination as to whether or not the Employee is suffering from a
permanent disability.
In the event of a termination due to permanent disability, the
Employee shall be entitled to receive from the Company (i) such
disability benefits, if any, as are provided to the Employee under the
Company's personnel policies generally in effect at the time of the
termination of this Agreement, and (ii) all other employee benefits
earned by the Employee that have fully accrued and vested but not been
paid at the time of the termination of this
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Agreement (including any earned but unpaid vacation pay) at such times
as payments are required under the terms of the applicable Plan.
(c) In addition, notwithstanding the provisions of Paragraphs
6(a) and 6(b) to the contrary, all employee options and restricted
share awards, shall, upon the termination due to death or disability of
Employee, accelerate and vest and shall be exercisable or any
restriction shall lapse in accordance with the terms of the respective
grant.
7. TERMINATION.
(a) TERMINATION FOR CAUSE. The Company may terminate the
employment of the Employee under this Paragraph 7(a) if the Employee
(i) commits an act of fraud with respect to the Company, (ii) is
convicted of a felony, (iii) engages in conduct causing demonstrable
and serious injury to the business of the Company, (iv) continually
fails substantially to perform his duties under Paragraph 3(a) hereof
(other than any such failure resulting from the disability of the
Employee or any such failure occurring after any of the events
constituting "Good Reason" hereunder has occurred) for a period of
thirty (30) days after receipt by the Employee of a written demand for
substantial performance has been delivered by the Company to the
Employee, which written demand specifically identifies in reasonable
detail the manner in which the Company believes that the Employee has
not substantially performed his duties hereunder, or (v) the material
breach by the Employee of any of his obligations under Paragraphs 9 or
10 hereof and the failure of the Employee to remedy such breach within
thirty (30) days after the receipt by the Employee of a written notice
from the Company specifying in reasonable detail the nature of such
breach. Termination pursuant to this Paragraph 7(a) shall be herein
referred to as a "Termination for Cause." Upon a Termination for Cause,
the Company shall have no further obligation hereunder except to pay
Employee Base Salary through the date of termination and other employee
benefits earned by the Employee that have fully accrued and vested but
not been paid at the time of such termination (including any earned but
unpaid vacation pay).
(b) TERMINATION WITHOUT CAUSE. The Company may terminate the
employment of the Employee hereunder without cause pursuant to this
Paragraph 7(b). Such termination shall be effective by providing the
Employee with a written notice of termination. Termination pursuant to
this Paragraph 7(b) is referred to in this Agreement as "Termination
Without Cause." If the Company terminates the Employee's employment
under this Paragraph 7(b), the Company's only obligations hereunder
shall be to (A) pay the Employee any Base Salary and other benefits
that have fully accrued and vested but not been paid as of the
effective date of such termination (including any earned but unpaid
vacation pay), and (B) make the severance payments described in
Paragraph 8 hereof.
(c) TERMINATION BY EMPLOYEE. The Employee may terminate his
employment hereunder by providing the Company with a written notice of
termination at least sixty (60) days prior to the effective date of
such termination unless such termination is due to a Change
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in Control (as hereinafter defined), in which case such notice shall be
effective at the time the Change in Control occurs. If the Employee
terminates his employment under this Paragraph 7(c) other than for Good
Reason, the Company shall have no further obligation to pay hereunder
except to pay the Employee Base Salary and other benefits that have
fully accrued and vested but not been paid as of the effective date of
such termination (including any earned but unpaid vacation pay). If the
Employee terminates his employment under this Paragraph 7(c) for Good
Reason (a "Termination for Good Reason"), such termination shall be
treated as if it were a Termination Without Cause pursuant to Paragraph
7(b).
As used herein, "Good Reason" shall mean (a) the material
breach by the Company of any of its agreements set forth in Paragraphs
3(a), 3(c), 4(a) through 4(i) and 5 hereof which continues unremedied
for a period of thirty (30) days after receipt by the Company of a
written demand for performance from the Employee, which written demand
specifically identifies in reasonable detail the manner in which
Employee believes that the Company has not performed its obligations;
provided, however, that no notice or grace period shall be required
with respect to the failure of the Company to pay the Base Salary when
due, (b) the occurrence of a Change in Control after the Effective
Date; provided the Employee notifies the Company of his desire to
terminate this Agreement prior to the time the Change in Control
occurs, (c) a material change in the significant responsibilities of
the Employee hereunder, or (d) the Company's offices in the San
Francisco, California area no longer constitute the principal base of
operation for the performance of the duties and responsibilities of the
Employee under this Agreement. Notwithstanding the foregoing, in the
event of termination by Employee in the case of a Change of Control,
Employee shall continue in the employ of the Company for up to thirty
(30) days after the Change in Control occurs upon the terms and
conditions set forth herein upon the written request of the Company
made at least thirty (30) days prior to the date the Change in Control
occurs. As used in this Agreement, "Change in Control" shall mean (a)
any "person" (as such term is used in Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended) becomes the beneficial
owner, directly or indirectly, of securities of the Trust representing
30% or more of the combined voting power of the Trust's outstanding
securities (excluding Xxxxxx Xxxxxx Golf Management LLC, Olympus Real
Estate Corporation, Montclair Hotel Investors, Inc. or any of their
respective Affiliates (as defined in Paragraph 9), (b) during any
period of twenty-four consecutive months, individuals who at the
beginning of such twenty-four month period were trustees of the Trust
cease for any reason to constitute at least a majority of the Board of
Trustees unless replaced by trustees nominated or elected by persons
who were trustees of the Trust at the beginning of such twenty-four
month period, (c) consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all
of the assets of the Company (a "Business Combination"), in each case,
unless, following such Business Combination, (i) all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the outstanding company common shares and outstanding
company voting securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 75% of,
respectively, the then outstanding shares of common shares and the
combined voting power of the then outstanding voting
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securities entitled to vote generally n the election of directors, as
the case may be, of the corporation, trust or other entity resulting
from such Business Combination (including, without limitation, a
corporation, trust or other entity which as a result of such
transaction owns the Company or all of substantially all of the
Company's assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership, immediately
prior to such Business Combination of the outstanding company common
shares and outstanding company voting securities, as the case may be,
(ii) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the
Company or such corporation, trust or other entity resulting from such
Business Combination) beneficially owns, directly or indirectly, 20% or
more of, respectively, the then outstanding shares of common stock of
the corporation, trust or other entity resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation, trust or other entity except to the
extent that such ownership existed prior to the Business Combination
and (iii) at least a majority of the members of the board of directors
of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board, providing for such
Business Combination, or (d) approval by the shareholders of the
Company of a complete liquidation or dissolution of the Company.
(d) EFFECTS OF TERMINATION. The termination of this Agreement
shall not affect or impair the obligations of the parties under
Paragraphs 8, 9 or 10 or the obligation of the Company to make the
payments which are due to Employee as a result of such termination.
8. SEVERANCE PAYMENTS. Within thirty (30) days after the
effective date of a Termination Without Cause pursuant to Paragraph 7(b) hereof
or a Termination for Good Reason pursuant to Paragraph 7(c) hereof, the Company
shall pay to the Employee a lump sum amount, without discount, equal to the
greater of (a) the Base Salary which would have been payable to the Employee for
the remainder of the Term of this Agreement, (b) the Base Salary which would
have been payable to the Employee had this Agreement remained in effect for a
period of one year after such termination of employment, assuming the case of
(a) or (b) that Employee's Base Salary remained at the rate in effect prior to
such termination. In addition, all share options and restricted share awards
shall accelerate and vest as of the date of termination.
If in the opinion of tax counsel ("Tax Counsel") selected by the
Employee and reasonably acceptable to the Company, the Employee has or will
receive any compensation or recognize any income (whether or not pursuant to
this Agreement or any plan or other arrangement of the Company and whether or
not the Employee's employment with the Company has terminated) which constitute
an "excess parachute payment" within the meaning of Section 280G(b)(1) of the
Internal Revenue Code of 1986, as amended ("Code") (or for which a tax is
otherwise payable under section 4999 of the Code), then the Company shall pay to
the Employee an additional amount (the "Additional Amount") equal to the sum of
(i) all taxes payable by the Employee under Code section 4999 with respect to
all such excess parachute payments (or payments otherwise subject to tax under
4999 of
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the Code) and the Additional Amount, plus (ii) all federal, state and local
income taxes payable by the Employee with respect to the Additional Amount. Upon
written request for payment by the Employee, detailing in a fashion reasonably
acceptable to the Company the amount payable by the Company as the Additional
Amount, the Company shall have 15 days to verify the calculations presented by
the Employee (the "Verification Period"). After the end of the Verification
Period, the Company shall have 15 days to pay the Employee the Additional
Amount. If the Company disputes the submission materials submitted by the
Employee, written notification of the dispute shall be provided to the Employee
within three days of the end of the Verification Period. Thereafter, a
third-party, acceptable to both the Company and the Employee, shall be selected
to resolve the dispute and shall sign as preparer of the Employee's return.
Notwithstanding the foregoing, all payments under this Paragraph 8 shall be made
prior to or on the date of the Employee's termination.
9. COMPETITION.
(a) In consideration of the Company's agreement to employ the
Employee as provided in Paragraph 3 hereof, the Employee hereby agrees
that during the Noncompete Period (as defined below), without the prior
written approval of the Company, the Employee shall not, except in the
course of his employment hereunder, directly or indirectly:
(i) participate in any manner, whether directly
or indirectly, in any Competing Company (as
hereinafter defined), either individually or
as an officer, director, employee, agent,
consultant, partner, investor (excluding
passive investments not aggregating more
than five percent (5%) of any such entity's
total outstanding voting securities),
principal or otherwise;
(ii) solicit, divert, take away or enter into any
leases or the like with, or attempt to
solicit, divert, take away or enter into any
leases or the like with, any entity or its
Affiliates which during the term of
Employee's employment hereunder leases one
or more golf courses owned by the Company or
Affiliate of the Company in the United
States; or
(iii) solicit, attempt to solicit, hire for
employment or engage, any person who is an
employee of the Company or an Affiliate of
the Company as of the date of the
termination of Employee's employment
hereunder, or who was an employee of the
Company or any Affiliate of the Company
within six (6) months immediately prior to
the date of the termination of Employee's
employment hereunder.
As used herein, "Competing Company" means any entity which
qualifies or intends to qualify for treatment as a real estate
investment trust under the Internal Revenue Code of 1986, as amended,
or any other entity (including a separate division of an entity) which
is engaged primarily in the business of acquiring, owning or leasing
golf courses. As used
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herein, "Affiliate" means, when used with respect to an entity or the
Company, (i) any Person (as hereinafter defined) which directly or
indirectly controls, is controlled by or under common control with such
entity or the Company, and (ii) any Person who directly or indirectly
owns, controls or holds the power to vote ten percent (10%) or more of
the outstanding securities of such entity or the Company. As used
herein, "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies
of a Person, whether through the ownership of voting securities, by
contract or otherwise. As used herein, "Person" means any individual,
partnership, corporation, trust or other entity. As used herein,
"Noncompete Period" shall mean the period commencing on the Effective
Date and ending on the first anniversary of the date of the termination
of this Agreement.
(b) The Employee acknowledges that the Employee will be
involved at an executive level in the development, implementation and
management of the Company's national business strategies and plans,
including those which involve the Company's finances, research,
marketing, planning, operations, relations and property acquisitions.
By virtue of the Employee's unique and sensitive position and special
background, employment of the Employee by a Competing Company
represents a serious competitive danger to the Company, and the use of
the Employee's talent and knowledge and information about the Company's
business strategies can and would constitute a valuable competitive
advantage over the Company.
(c) The Employee acknowledges that enforcement of the
covenants set forth in this Paragraph 9 and in Paragraph 10 hereof will
not prevent him from earning a living in the golf industry. The
Employee further acknowledges that the restrictions contained herein
have been specifically negotiated and agreed to by the parties hereto
and are limited only to those restrictions necessary to protect the
Company from unfair competition.
(d) The Employee acknowledges that he has carefully read and
considered all of the terms of this Agreement, including particularly
the terms of this Paragraph 9 and of Paragraph 10 hereof, that the
Company has made a substantial investment in the Company's business and
that the restrictions provided in this Paragraph 9 and the following
Paragraph 10 hereof are reasonable and necessary for the Company's
protection. The Employee further acknowledges that damages at law will
not be a measurable or adequate remedy for breach of the covenants
contained in this Paragraph 9 or in Paragraph 10 hereof and,
accordingly the Employee consents to the entry by any court of
competent jurisdiction of any order enjoining him from violating any
such covenants. The parties hereto further agree that if, in any
judicial proceeding, a court should refuse to enforce any covenants set
forth in this Paragraph 9 or in Paragraph 10 hereof because of their
term or geographical scope, then such covenants shall be deemed to be
modified to permit their enforcement to the maximum extent permitted by
law.
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10. CONFIDENTIALITY. The Employee acknowledges and agrees that the
Company competes in a highly competitive industry and in competitive markets and
that as an executive the Employee will have access to proprietary and
confidential information and trade secrets of the Company and its affiliates and
subsidiaries and their respective predecessors. The Employee agrees that he will
not, without the written consent of the Company, except in the course of
performing his duties hereunder, disclose or knowingly permit any Person under
his control to disclose to anyone not properly entitled to the information or
use for his own benefit or the benefit of anyone else other than the Company or
any affiliate or subsidiary of the Company, any such trade secrets or
proprietary or confidential information relating to the Company and related
entities.
11. WAIVER. A waiver by any party of any of the terms and
conditions of this Agreement in any instance shall not be deemed or construed to
be a waiver of such terms and conditions for the future, or of any subsequent
breach thereof.
12. NOTICES. Any and all notices required or permitted to be given
hereunder shall be in writing and shall be deemed to have been given when
personally delivered or, if mailed, on the third business day after it is
deposited in the United States mails, certified or registered mail, postage
prepaid and addressed as follows:
To the Employee: __________________________________
__________________________________
__________________________________
To the Company: Xxxxxxxx 000, Xxxxxxxxxx Xxxxxx
Presidio Main Post
P. O. Xxx 00000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chairman of the Board
Any party may change by notice the address to which notices to it are
to be addressed.
13. REPRESENTATION BY EMPLOYEE. The Employee represents and
warrants that he is not a party to or bound by any covenant or agreement which
in any manner restrains or restricts the activities of the Employee or his
ability to enter into this Agreement.
14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without regard
to the principles of conflicts of laws thereof.
15. AMENDMENTS, ETC. The Agreement may not be varied, altered,
modified, changed, or in any way amended except by an instrument in writing,
executed by the parties hereto or their legal representatives.
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16. HEADINGS AND CAPTIONS. Headings and paragraph captions used
in this Agreement are intended for convenience of reference only and shall not
affect the interpretation of this Agreement.
17. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts, which taken together shall be deemed to constitute
one original.
18. MISCELLANEOUS.
(a) The Employee shall not have any right to commute, encumber
or dispose of the right to receive payment hereunder or of the right to
receive any of the benefits provided for hereunder.
(b) Upon the termination of Employee's employment hereunder,
at the sole option of the Company, the Employee shall be deemed to have
resigned from any office of the Company and its Affiliates which he may
then hold and shall promptly deliver to the Company (without retaining
any copies thereof) all Company files and documents, forms, letterhead,
business cards, charge cards, computer disks and any other written,
magnetic or printed materials relating to the business of the Company,
other than information available generally to the shareholders of the
Trust. Nothing in this Paragraph 18(b) shall in any way eliminate the
obligations of Employee under Paragraph 9.
(c) Each party shall bear its or his own costs in connection
with any controversy or dispute arising out of or relating to this
Agreement.
(d) Except as otherwise specifically noted hereunder, this
Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior and
contemporaneous agreements, if any, between the parties relating to the
subject matter hereof. The enforceability of this Agreement shall not
cease or otherwise be adversely affected by the termination of the
Employee's employment with the Company.
(e) THE EMPLOYEE REPRESENTS TO THE COMPANY THAT HE IS
KNOWLEDGEABLE AND SOPHISTICATED AS TO BUSINESS MATTERS, INCLUDING THE
SUBJECT MATTER OF THIS AGREEMENT, THAT HE HAS READ THIS AGREEMENT AND
THAT HE UNDERSTANDS ITS TERMS. THE EMPLOYEE ACKNOWLEDGES THAT THERE IS
A RISK THAT THE IPO MAY NOT OCCUR. THE EMPLOYEE ACKNOWLEDGES THAT,
PRIOR TO ASSENTING TO THE TERMS OF THIS AGREEMENT, HE HAS BEEN GIVEN A
REASONABLE TIME TO REVIEW IT, TO CONSULT WITH COUNSEL OF HIS CHOICE,
AND TO NEGOTIATE AT ARM'S-LENGTH WITH THE COMPANY AS TO ITS CONTENTS.
THE EMPLOYEE AND THE COMPANY AGREE THAT THE LANGUAGE USED IN THIS
AGREEMENT IS THE LANGUAGE CHOSEN BY THE PARTIES TO EXPRESS THEIR MUTUAL
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INTENT, AND THAT NO RULE OF STRICT CONSTRUCTION IS TO BE APPLIED
AGAINST ANY PARTY HERETO.
(f) This Agreement is personal to, and shall be non-assignable
by, the Employee. This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
PRESIDIO GOLF TRUST
By: ____________________________________
Title: _____________________________
PRESIDIO GOLF LIMITED PARTNERSHIP
By: PRESIDIO GOLF TRUST, its general
partner
By: _____________________________
Title: ______________________
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