Exhibit 10.11
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TERMINATION AND RELEASE AGREEMENT
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AGREEMENT (the "Agreement"), dated as of February 20, 2002, by and
among Gotham Golf Partners, L.P., a Delaware limited partnership (the
"Company"), Gotham Golf Corp., a Delaware corporation ("GGC") and Xxxxxxx X.
Xxxxxxx (the "Executive").
WHEREAS, the Executive has been employed as Chief Executive Officer
and Treasurer of the Company, pursuant to the employment agreement between the
Company and the Executive, dated as of January 1, 1999 (the "Employment
Agreement");
WHEREAS, the Company has entered into an Agreement and Plan of Merger
and Contribution, dated as of February 13, 2002, by and among First Union Real
Estate Equity and Mortgage Investments, an Ohio business trust, that certain
Ohio trust, declared as of October 1, 1996, by Xxxxxx Xxxxxxx, trustee, First
Union Management, Inc., a Delaware corporation, Gotham Partners, L.P., a
Delaware limited partnership, the Company, GGC, GGC Merger Sub, Inc., a Delaware
corporation and a wholly owned subsidiary of GGC, Florida Golf Properties, Inc.,
a Florida corporation and the sole general partner of the Company, and Florida
Golf Associates, L.P., a Virginia limited partnership (the "Merger Agreement"),
pursuant to which, among other things, the Company shall become a less than
wholly owned subsidiary of GGC (the "Merger"); and
WHEREAS, the Company and the Executive desire to set forth terms
pursuant to which the Executive shall cease to be an employee or director of the
Company or any of its affiliates in connection with the transactions
contemplated by the Merger Agreement.
NOW, THEREFORE, BE IT RESOLVED, in consideration of the premises and
the representations, warranties, covenants and agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the Company,
the Executive and GGC hereby agree as follows:
1. Termination of Employment
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The Executive shall resign immediately prior to the Effective Time (as
defined in the Merger Agreement) (the date on which the Effective Time occurs,
the "Termination Date") from his position as Chief Executive Officer and
Treasurer of the Company and from all other positions with the Company the
Executive may currently hold in any capacity including, among others, as an
officer, director or member of the board of directors of the Company or any of
the Company's subsidiaries or affiliates, as applicable; provided, however, that
nothing herein shall be construed to suggest that the Executive shall not
continue as a partner of the Company. The Executive shall sign and deliver to
the Company such other documents as may be necessary to effect or reflect such
resignations.
2. Transfer of Interests.
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The Executive hereby agrees to transfer, as soon as is practicable
after the Termination Date, all of his stock and interest in each of The Bridges
Golf Club, Inc., Edgewood
Pines Golf Club, Inc., Greencastle Golf Club, Inc., Honey Run Golf Club, Inc.
and YGC, Inc. to the Company for total compensation in an amount not to exceed
$10.
3. Continuation of Duties.
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The Executive hereby agrees to continue, for so long as the Company
shall desire, to serve as the named party on the liquor license relating to
Xxxxxxxxxx Country Club, LLC, without additional compensation. The Company shall
indemnify and hold harmless the Executive with respect to any claims,
liabilities and costs (including reasonable attorney' fees) incurred in
connection with the foregoing. The Executive shall periodically sign and deliver
to the Company or the applicable licensing authority all documentation that is
required to maintain the liquor license. The Executive also hereby agrees to
continue in his capacity as the managing member of each of Miami National Golf
Club, L.C., a Florida limited liability company, and California Golf Club, L.C.,
a Florida limited liability company, for so long as the Company shall desire, as
provided in the operating agreements for these companies.
4. Severance Payments
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(a) Effective as of January 1, 2002, but subject to Sections 4(b) and
4(c) of this Agreement, the Executive shall waive his right to payment on a
current basis of any compensation or benefits under the Employment Agreement.
(b) Immediately after the Effective Time and subject to Section 7(d)
hereof, except as provided in Section 2(c) hereof, the Company shall pay to the
Executive a cash lump sum payment equal to all amounts owing the Executive under
the Employment Agreement from January 1, 2002 through December 31, 2003;
provided that, (i) the portion of such amount attributable to payments under the
Employment Agreement with respect to periods after the Termination Date and
through December 31, 2003 shall be discounted to present value at an annual
discount rate of 7% and (ii) the portion of such amount attributable to payments
with respect to the period beginning on January 1, 2002 and ending on the
Termination Date shall be increased by interest at an annual rate of 7% (such
payment, the "Severance Payment"). After receiving the Severance Payment, the
Executive will not thereafter be entitled to any additional wages, compensation
or benefits from the Company or any of its subsidiaries or affiliates pursuant
to or in connection with the Employment Agreement.
(c) If the Merger is not consummated for any reason, (i) the Company
shall not pay the Severance Payment to the Executive, (ii) the Executive's
waiver of the current payment of compensation and benefits pursuant to Section
4(a) shall lapse and the terms and conditions of the Employment Agreement shall
again become effective with respect to the Executive from and after such time,
(iii) the Company shall pay the Executive a cash amount equal to all
compensation and benefits foregone by the Executive pursuant to Section 4(a)
hereof, increased by interest at an annual rate of 7% and (iv) the terms and
provisions of this Agreement shall become null and void and of no further force
or effect.
(d) This Agreement shall supersede the Employment Agreement and the
Employment Agreement shall be terminated from and after the date of the
Termination Date, without any remaining obligation of any party under such
agreements, except to the extent
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otherwise specifically referred to in this Agreement, including without
limitation Sections 4(c) and 5 of this Agreement.
(e) The Executive agrees that payment of the amounts set forth in this
Section 4 is conditioned upon his satisfaction of the terms of this Agreement.
5. Restrictive Covenants
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(a) In consideration of the payments and benefits set forth in this
Agreement, during the period commencing on the Termination Date and ending on
December 31, 2003, the Executive shall not, directly or indirectly, alone, or as
an employee, agent, advisor, salesman, independent contractor, lender,
consultant, owner, partner, joint venturer, officer, director or stockholder or
in any other capacity, enter into, engage in, plan, organize, aid, assist, own,
manage, operate, control, participate in, become employed by, consult with,
perform services for, obtain a material financial or proprietary interest in, or
otherwise become associated at any capacity with any business or person that
might be deemed to compete with or be deemed to be setting up to compete with
the Company, GGC and/or any of their subsidiaries ("Owning Entity") (i) within
one hundred fifty (150) miles of any golf course managed by the Company or GGC
or owned by any Owning Entity, and (ii) in any line of business that is
substantially the same as any line of business described in clause (i) and (ii)
of Article III of GGC's Amended and Restated Certificate of Incorporation.
(b) In consideration of the payments and benefits set forth in this
Agreement, during the period commencing on the Termination Date and ending on
December 31, 2003, the Executive shall not (i) solicit business on behalf of the
Executive or any other person from any client or customer of the Company or GGC,
or otherwise directly or indirectly divert or interfere with or attempt to
divert or interfere with the business or the clients or customers of the Company
or GGC or (ii) directly or indirectly hire, recruit, solicit or induce, or
attempt to induce, an employee or employees of the Company or GGC to terminate
their employment with, or otherwise cease their relationship with, the Company
or GGC, as the case may be.
(c) The Executive acknowledges and agrees that the breach of the
provisions of this Section 5 will cause irreparable injury to the Company and
GGC, inadequately compensable in damages. Accordingly, in addition to such other
rights and remedies the Company and/or GGC may have under this Agreement, at law
or in equity with respect to any breach or threatened breach of this Agreement,
the Company and GGC shall be entitled to injunctive relief against the breach or
threatened breach of any of the provisions of this Section 5, it being
acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Company and GGC and that money damages will not
provide an adequate remedy to the Company and GGC. The Company, GGC and the
Executive agree and stipulate that the agreements and covenants not to compete
contained in this Section 5 are fair and reasonable in light of all of the facts
and circumstances of the relationship between the Company, GGC and the Executive
and the Executive hereby expressly waives any objection to or defense in respect
of the geographical scope and/or duration of the restriction on competition
contained in this Section 5. The Executive acknowledges and agrees that the
scope and duration of this restriction is reasonable and warranted in order to
protect the Company's and GGC's legitimate business interests and rights and
that the Executive's experience and capabilities are such that the
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Executive will not be prevented from earning a livelihood in the Executive's
area of expertise as a result of the limited restrictions provided herein. In
furtherance of and not in derogation of the provisions of this Section 5, the
Company, GGC and the Executive agree that in the event that, notwithstanding the
foregoing, a court should decline to enforce any of the provisions of this
Section 5, such provision or provisions shall be deemed to be modified to
restrict the Executive's competition with the Company and GGC to the maximum
extent, in time, geography and scope, which the court shall find enforceable.
6. Waiver of Further Payments and Benefits
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Subject to indemnification pursuant to Section 3, the compensation and
benefits arrangements set forth in this Agreement are in lieu of any rights or
claims that the Executive may have with respect to severance or other benefits,
or any other form of remuneration from the Company, GGC or any of its
affiliates, and without limiting the generality of the foregoing, the Executive
hereby expressly waives any right or claim that he may have or could assert to
payment for salary, bonuses, medical, dental or hospitalization benefits,
payments under supplemental retirement plans and incentive plans, life insurance
benefits and attorneys' fees, except as otherwise provided in this Agreement or
as mandated under applicable law, including for or with respect to any services
that the Executive may provide to or on behalf of the Company or its affiliates
after the date of this Agreement.
7. Waiver and Release
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(a) In consideration of the payments and benefits set forth in this
Agreement, the Executive, for himself, his heirs, administrators,
representatives, executors, successors and assigns (collectively "Releasors")
does hereby irrevocably and unconditionally release, acquit and forever
discharge the Company, GGC and their affiliates and their trustees, officers,
security holders, partners, agents, attorneys, and former and current employees
and directors, including without limitation all persons acting by, through,
under or in concert with any of them (collectively, "Releasees"), from any and
all charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, remedies, actions, causes of action, suits, rights,
demands, costs, losses, debts and expenses (including attorneys' fees and costs)
of any nature whatsoever, known or unknown, whether in law or equity and whether
arising under federal, state or local law and in particular including any claim
for discrimination based upon race, color, ethnicity, sex, age (including but
not limited to the Age Discrimination in Employment Act of 1967), national
origin, religion, disability, or any other unlawful criterion or circumstance,
which the Releasors had, now have, or may have in the future, against each or
any of the Releasees from the beginning of the world until the date of this
Agreement, except for claims solely in connection with the Executive's rights as
a partner of the Company pursuant to the Second Amended and Restated Agreement
of Limited Partnership of Gotham Golf Partners, L.P. (f/k/a Florida Golf
Properties, L.P.), dated December 31, 1991, as amended to date (the "Partnership
Agreement"). The Executive acknowledges and agrees that if he or any other
Releasor should hereafter make any claim or demand or commence or threaten to
commence any action, claim or proceeding against the Releasees with respect to
any cause, matter or thing which is the subject of this Section 7(a), this
Agreement may be raised as a complete bar to any such action, claim or
proceeding, and the applicable Releasee may recover from the Executive all costs
incurred in connection with such action, claim or proceeding, including
attorneys' fees.
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(b) In consideration of the Executive's agreements and covenants set
forth in this Agreement, the Company, GGC and their subsidiaries (the "Company
Releasors") hereby irrevocably and unconditionally release, acquit and forever
discharge the Executive from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages,
remedies, actions, causes of action, suits, rights, demands, costs, losses,
debts and expenses (including attorneys' fees and costs) of any nature
whatsoever, known or unknown, whether in law or equity and whether arising under
federal, state or local law, which the Company Releasors now have, or may have
in the future, against the Executive with respect to the Executive from the
beginning of the world until the date of this Agreement, other than (i) any
claim based upon fraudulent or illegal activity that was not discovered by the
Company Releasors until subsequent to the date of execution of this Agreement,
or any claim that may be brought derivatively and (ii) any claim solely in
connection with the Executive's status as a partner of the Company pursuant to
the Partnership Agreement. The Company Releasors acknowledge and agree that if
they should hereafter make any claim or demand or commence or threaten to
commence any action, claim or proceeding against the Executive with respect to
any cause, matter or thing which is the subject of this Section 7(b), this
Agreement may be raised as a complete bar to any such action, claim or
proceeding, and the Executive may recover from the Company Releasors all costs
incurred in connection with such action, claim or proceeding, including
attorneys' fees.
(c) The parties to this Agreement shall re-execute the releases
contained in Sections 7(a) and 7(b) for the period between the date hereof and
the Termination Date, effective as of the date that is seven days prior to the
Termination Date.
(d) The Executive affirms that prior to the execution of this
Agreement and the waiver and release in Section 7(a), the Executive was advised
by the Company to consult, and has in fact consulted, with an attorney of the
Executive's choice concerning the terms and conditions set forth herein, and
that the Executive was given up to 21 days to consider executing this Agreement,
including the waiver and release in Section 7(a). The Executive has 7 days
following his execution of this Agreement to revoke and cancel the terms and
conditions contained herein in writing, including the waiver and release in
Section 7(a) (the "First Seven-Day Period"). The Executive has 7 days following
his re-execution of such waiver and release pursuant to Section 7(c) of this
Agreement to revoke and cancel the terms and conditions of such re-executed
release in writing (the "Second Seven Period"). This Agreement shall not be
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effective until the expiration of the First Seven Day Period. No payment shall
be made to the Executive pursuant to this Agreement until the expiration of the
Second Seven-Day Period without the Executive's revocation hereof. .
(e) If the Company fails to present this Agreement for re-execution at
least seven (7) days prior to the Termination Date, then, notwithstanding
Section 7(d), the Executive will be paid all amounts due under this Agreement
immediately before the Effective Time.
8. Indemnity
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The Executive shall be indemnified and held harmless to the fullest
extent permitted by law, as stated more fully in Schedule A to this Agreement.
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9. No Reliance; Construction
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(a) The Executive represents and acknowledges that, in executing this
Agreement, he has not relied upon any representation or statement made by the
Company or its affiliates not set forth herein.
(b) Unless the context requires otherwise: (a) the gender (or lack of
gender) of all words used in this Agreement includes the masculine, feminine and
neuter; (b) references to Sections refer to Sections of this Agreement; (c)
references to laws refer to such laws as they may be amended from time to time,
and references to particular provisions of a law include any corresponding
provisions of any succeeding law; (d) references to money refer to legal
currency of the United States of America; (e) the word "including" means
"including, without limitation"; and (f) all capitalized terms defined herein
are equally applicable to both the singular and plural forms of such terms.
10. Governing Law
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This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to the principles of conflicts
of law thereof, to the extent not superseded by applicable federal law. THE
PARTIES HERETO HEREBY AGREE THAT ANY DISPUTE CONCERNING FORMATION, MEANING,
APPLICABILITY OR INTERPRETATION OF THIS AGREEMENT SHALL BE SUBMITTED TO THE
JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE (INCLUDING FEDERAL COURTS IN
THE STATE OF DELAWARE), AND NO OTHER STATE SHALL HAVE JURISDICTION OVER SUCH
MATTERS, AND FURTHER AGREE TO WAIVE ALL RIGHTS TO A JURY TRIAL WITH RESPECT TO
ANY SUCH MATTERS.
11. No Coercion
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The parties hereto represent and acknowledge that they have decided to
enter into this Agreement voluntarily, knowingly and without coercion of any
kind.
12. Enforceability
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The parties hereto affirmatively acknowledge that this Agreement, and
each of its provisions, is enforceable, and expressly agree not to challenge nor
raise any defense against the enforceability of this Agreement or any of its
provisions in the future (including, for purposes of this Section 12). The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement.
13. Notices
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All notices, requests, demands and other communication that are
required or may be given under this Agreement shall be in writing and shall be
deemed to have been duly given when received if personally delivered; when
transmitted by telecopy, electronic or digital transmission method upon receipt
of telephonic or electronic confirmation; that day after it is sent, if sent for
next day delivery to a domestic address by recognized overnight delivery service
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(e.g., Federal Express) and upon receipt, if sent by certified or registered
mail, return receipt requested. In each case notice shall be sent to:
If to the Executive, addressed to:
Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
If to the Company, addressed to:
Gotham Golf Partners, L.P.
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
with a copy to:
Xxxx X. Xxxxxxxx, Esq.
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
or to such other place and with such other copies as any party may designate as
to itself or himself by written notice to the others.
14. Amendments; Waivers
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This Agreement may not be amended, modified or terminated, except by a
written instrument signed by the parties hereto. Any provision of this Agreement
may be waived by a written instrument signed by the party to be charged with
such waiver.
15. Successors
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This Agreement shall be binding on the Executive, the Company, GGC and
their respective heirs, successors and assigns, including without limitation any
corporation or other entity into which the Company or GGC may be merged,
reorganized or liquidated, or by which either of such entities may be acquired.
The obligations of the Company may be assigned without limitation; but, as the
obligations to be performed by the Executive hereunder are unique based upon his
skills and qualifications, the Executive's obligations under this Agreement may
not be assigned.
16. Entire Agreement
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Except as specified herein, this Agreement contains the entire
agreement between the parties concerning the subject matter hereof and
supersedes all prior agreement, understandings, discussions, negotiations and
undertakings, whether written or oral, between the parties with respect thereto.
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17. Counterparts
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This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement, as of
the date and year first written above.
GOTHAM GOLF CORP.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
GOTHAM GOLF PARTNERS, L.P.,
a Delaware limited partnership
By: Florida Golf Properties, Inc.,
its general partner
By: /s/ Xxxx Xxxxxxxxxxx
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Name: Xxxx Xxxxxxxxxxx
Title: President
XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
