[EXHIBIT 10.4]
EXECUTION COPY
EXECUTIVE EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT made as of the 26th day of July, 2007, by
and between SIX DIAMOND RESORTS INTERNATIONAL, S.A., a corporation
formed under the laws of Panama with its principal offices at ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Company") and ▇▇▇▇▇ ▇▇▇▇,
an individual residing at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ (the "Executive").
W I T N E S S E T H :
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WHEREAS, the Company will engage in the development of world
class resort and retirement communities; and
WHEREAS, the Company will engage the services of Executive as its
Chief Operating Officer and Chief Financial Officer, and Executive is
willing to accept such engagement, all on and subject to the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein
and other good and valuable consideration, the receipt and sufficiency
of which are hereby unconditionally acknowledged, the parties hereto
do hereby agree as follows:
1. Employment. During the Term (hereinafter defined) of this
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Agreement, the Company hereby employs Executive as its Chief Operating
Officer and Chief Financial Officer, and Executive hereby accepts such
employment, upon and subject to the terms and conditions set forth in
this Agreement. Executive acknowledges that the Company plans to
hereafter merge into a publicly owned company (and from and after the
effectiveness of the merger, all references to the "Company" in this
Agreement shall mean the surviving entity in the merger) and, in
connection and simultaneously therewith, to consummate a private
placement of securities of the surviving company to investors (the
"PIPE Offering"). In such event, Executive during the Term of this
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Agreement shall remain as the Chief Operating Officer and Chief
Financial Officer of the Company. If, at any time during the Term
hereof, the Company appoints another Chief Financial Officer,
Executive hereby agrees to resign as Chief Financial Officer promptly
after receipt of any request from the Company to do so (and Executive
shall remain as the Chief Operating Officer during the then remainder
of the Term hereof).
2. Executive's Duties and Responsibilities.
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2.1. Executive will, during the Term of this Agreement,
have all of the duties, powers and authority, and will perform all
services, customarily associated with the position of Chief Operating
Officer and Chief Financial Officer, as well as such other duties and
services consistent with such positions as the Company's Board of
Directors may assign to him from time to time during the Term of this
Agreement. In such capacity, Executive shall have the primary
responsibility for the day-to-day operating and financial activities
of the business of the Company and will report to the Chief Executive
Officer and Board of Directors of the Company (the "Board").
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Executive shall perform such services diligently, in good faith and in
a manner he believes in good faith to be consistent with the best
interests of the Company. Executive will devote substantially all of
his business time and efforts to the performance of his services under
this Agreement during the Term hereof. Executive shall be permitted
to devote a portion of his time to charitable activities and other
not-for-profit activities and management of his personal investments,
provided that such activities do not interfere materially with the
performance of Executive's services under this Agreement.
2.2. The Company acknowledges that Executive resides in
Houston, Texas and will render his services from the Company's
offices. It is acknowledged and agreed that Executive's duties will
require some travel (at the Company's expense) to such other locations
where the Company requires such services. Executive will not be
required to relocate his current residence at any time during the Term
hereof.
2.3. In the event that, at any time during the Term
hereof, the Company decides to obtain key man life insurance on
Executive's life, with the Company as the beneficiary thereof,
Executive will cooperate with the Company and its insurer in its
effort to obtain such insurance.
2.4. During the Term of this Agreement, Executive
shall provide the Company with notice of all proposed transactions or
opportunities that may be brought to his attention or otherwise
introduced to him in the resort and retirement community development,
ownership and operation field promptly after Executive's knowledge or
receipt of notice thereof and the Company shall have the exclusive
right as between the Company and Executive, to take advantage of or
otherwise act upon any such proposed transactions or opportunities.
3. Term.
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3.1. The term of this Agreement shall commence on the
date of the first closing of the PIPE Offering and, subject to Section
3.2 below, shall continue in effect until the earlier of (i) the third
anniversary of the date of such closing of the Company's PIPE
Offering, or (ii) December 31, 2010 (the "Initial Term"); provided,
however that this Agreement shall continue in effect for successive
one-year periods thereafter (each, a "Renewal Term"), unless either
party delivers to the other party written notice of its intent to not
renew this Agreement no less than ninety (90) days prior to the
expiration of the Initial Term or any Renewal Term, as the case may be
(the Initial Term and each Renewal Term, collectively referred to
herein as the "Term").
3.2. Notwithstanding the provisions of Section 3.1
above, the Company may terminate this Agreement upon the occurrence of
any of the following events:
(a) The death of Executive; or
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(b) the Permanent Disability (hereinafter
defined) of Executive; or
(c) following the delivery of notice to Executive
by the Company of the termination of this Agreement for any breach or
default by Executive of any of Executive's representations,
warranties, obligations or covenants under this Agreement, provided
that, with respect to any such breach or default which is curable, any
such breach or default is not cured within thirty (30) days after such
notice from the Company; or
(d) a final conviction of Executive for a felony
involving embezzlement, fraud or misappropriation of funds, in all of
such instances to the extent such crimes involve the Company or its
subsidiaries; or
(e) at the election of the Company, upon written
notice to Executive, upon any Change of Control. For purposes of this
Agreement, a "Change of Control" shall mean and be deemed to have
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occurred at such time as (A) any "person" (as such term is used in
Section 13(d) and Section 14(d)(2) of the Securities Exchange Act of
1934, as amended) is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing fifty (50%)
percent or more of the combined voting power of the Company's
outstanding securities, (B) there is a direct or indirect sale,
transfer, conveyance or other disposition (other than by way of merger
or consolidation), in one or a series of related transactions, of all
or substantially all of the properties or assets of the Company or any
other sale or transfer of all or substantially all of the Company's
business, or (C) the individuals who are members of the Incumbent
Board cease for any reason to constitute at least fifty percent (50%)
of the Company's Board. "Incumbent Board" means the individuals who,
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as of the last closing date of the PIPE Offering, are members of the
Board and any new director approved by a vote of at least fifty
percent (50%) of the then Incumbent Board; or
(f) upon delivery of a thirty (30) day notice
to Executive to terminate this Agreement, without cause, at any time
after December 31, 2007.
3.3. Notwithstanding the provisions of Section 3.1
above, Executive may terminate this Agreement upon the occurrence of
any of the following events:
(a) upon five (5) days notice from Executive
in the event of an assignment for the benefit of the Company's
creditors or a final adjudication of bankruptcy, insolvency,
receivership, or any such similar action against the Company; or
(b) following the delivery of notice to the
Company by Executive of the termination of this Agreement for any
breach or default by the Company of any of its representations,
warranties, obligations or covenants under this Agreement, provided
that, with respect to any such breach or default which is curable,
any such breach or default is not cured within thirty (30) days
after such notice from Executive.
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4. Compensation. In consideration of the performance by
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Executive of his services under this Agreement during the Term hereof,
the Company shall pay Executive the following compensation:
4.1. A base salary equal on an annual basis to
Two Hundred Fifty Thousand Dollars ($250,000) per year, for each year
during the Term hereof (the "Base Salary"), such salary to be paid to
Executive (less all applicable withholding and other payroll tax
deductions), in accordance with the Company's normal payroll
practices. The Base Salary for the first and last month of the Term
hereof shall be prorated based upon the number of days in each of such
months.
4.2. Executive will receive a guaranteed bonus of Sixty
Eight Thousand Dollars ($68,000) payable on December 31, 2007, and a
guaranteed bonus of Sixty Eight Thousand Dollars ($68,000) payable on
May 1, 2008. Thereafter, the Executive will receive such bonus as
prescribed by the Board or the Compensation Committee of the Board.
4.3. The Company shall, in addition to the Base Salary,
and applicable bonuses, reimburse Executive for all ordinary and
necessary out-of-pocket expenses incurred by him in the performance of
his services under this Agreement, subject to and upon receipt by the
Company of invoices or other documentation in support thereof. Such
expenses for which Executive shall be entitled to reimbursement shall
include, but not be limited to, travel, entertainment and lodging
expenses.
4.4. In addition to the Base Salary, and applicable
bonuses, Executive shall be entitled to participate in all benefit
programs of the Company which are in effect during the Term hereof for
its executive officers, including, without limitation, any retirement,
pension (including 401K plans), profit sharing or other employee
benefit plan of any type (including, without limitation, any
incentive, profit sharing, bonus or stock option plan), it being
understood that Executive shall have the same rights and privileges to
participate in all such Company benefit plans as any other officer or
executive employee of the Company (except for any of the same which
are provided for in any separate employment agreement between the
Company and any of its other officers or executives); provided,
however, that without limiting the foregoing the Company shall provide
Executive, in each year during the Term hereof, with (i) four (4)
weeks paid vacation (Executive will use his good faith efforts to
schedule such vacation so as not to interfere with any material
activities of the Company and, to the extent that there are any unused
vacation days at the end of each such year, the Company will pay
Executive an amount equal to his per diem Base Salary for up to two
weeks of such unused vacation days) and (ii) disability insurance for
Executive and health insurance for Executive and his dependent
children (the Company will reimburse Executive for such disability and
health insurance until such time as the Company establishes an
insurance plan for its officers and employees).
4.5. In the event that this Agreement is terminated
pursuant to Section 3.2(e), Section 3.2(f) or Section 3.3(b), the
Company will pay Executive severance compensation in a lump sum in an
amount equal to six (6) months of Executive's then Base Salary,
payable on the first business day following any such termination. The
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Executive shall be under no obligation to seek other employment or
otherwise mitigate the obligations of the Company under this
Agreement, and there shall be no offset against amounts or benefits
due Executive under this Agreement or otherwise on account of any
remuneration or other benefit earned or received after such
termination. Any amounts due to the Executive under this Section 4.5
are considered to be reasonable by the Company and are not in the
nature of a penalty.
5. Stock Options.
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5.1. As soon as practical after the last closing of the
PIPE Offering, the Company will adopt a stock option plan (the "Plan")
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pursuant to which shares of the Company's common stock will be
authorized for issuance to executives and employees of the Company. As
an additional inducement to Executive entering into this Agreement,
the Company will, upon the adoption of the Plan, issue to Executive
pursuant to the Plan, a stock option (the "Option"), which is intended
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to qualify as an incentive stock option within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder (the "Code"), exercisable for a
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period of ten years from the date of issuance, to purchase up to Three
Hundred Sixty Thousand (360,000) shares of the Company's Common Stock
(the "Option Shares") at an exercise price equal to the price of the
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securities sold by the Company in the PIPE Offering. The Option Shares
will vest over a three year period (or as otherwise determined by the
Board of Directors, excluding Executive's vote with respect thereto)
in equal installments of One Hundred Twenty Thousand (120,000) shares
on each of the first, second and third anniversaries of the date the
Option is issued, provided that Executive is still employed by the
Company on each such date. Notwithstanding the foregoing, all of the
Option Shares which have not vested will immediately vest: (x) upon
any termination of this Agreement pursuant to Section 3.2(b), Section
3.2(e) or Section 3.3(b), and (y) upon the death of Executive. If
required pursuant to the provisions of the Plan, any vested Option
Shares held by Executive following any termination or upon the
expiration of this Agreement shall be exercised within ninety (90)
days of the date Executive is no longer an employee of the Company, if
and to the extent required for such Option Shares to qualify for
incentive stock option treatment under the Code.
5.2. The Company hereby agrees that any registration
(including demand and piggyback), tagalong, or similar rights with
respect to the Company's equity securities that are granted to its
other officers, shareholders and directors will likewise be granted to
Executive with respect to the Option Shares and any other shares of
common stock of the Company (or any successor) owned by Executive.
Executive will execute any lock-up agreement with respect to his
shares and/or the Option Shares which is requested by any placement
agent or underwriter of the Company's securities, provided that such
lock-up agreement is on the same terms and conditions as the lock-up
agreement signed by the other officers, directors and principal
shareholders of the Company at the time and with respect to such
request.
6. Disability. Notwithstanding anything to the contrary
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contained in this Agreement, if, during the Term hereof, Executive
suffers a Permanent Disability, the Company shall continue to pay
Executive the Base Salary (less any amounts received by him pursuant
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to Executive's disability insurance policy) during the period of such
disability, provided, however, that in the event Executive is so
disabled for a period of ninety (90) consecutive days or one hundred
twenty (120) days in any year during the Term hereof (the "Disability
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Period"), the Company may terminate this Agreement at any time after
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any such Disability Period. The term "Permanent Disability" shall
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mean the inability of Executive to perform a material portion of his
services under this Agreement as determined by an independent
physician selected by the Company.
7. Confidentiality and Non-Disclosure Covenant. During the
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Term of this Agreement, Executive hereby acknowledges that he will
obtain and be entrusted with nonpublic material confidential and
proprietary information relating to the Company (for purposes of this
Section 7, this shall include the Company and all subsidiaries
thereof), such information to include, without limitation, information
with respect to the Company's present and proposed business and
operations including, without limitation, financial information
relating to the Company's present and proposed business and
operations, the cost and pricing of the Company's services, proposed
acquisitions of the Company, marketing plans and strategies, the terms
of all material agreements to which the Company is a party and the
sources and terms of the Company's existing or proposed debt or equity
financings. All of such information that may be obtained by Executive
shall, for purposes hereof, be referred to herein as "Confidential
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Information". Executive hereby agrees that, unless the Confidential
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Information becomes publicly known without any improper act of
Executive, he shall not directly or indirectly during the Term of this
Agreement or thereafter, use for his own benefit or in any manner
whatsoever, divulge to any person, firm, corporation or other entity
or otherwise publish or disclose any Confidential Information (except
as necessary in connection with the performance of Executive's
services under this Agreement, to comply with applicable laws or
regulations and to Executive's accountant or tax professional in
connection with the preparation of Executive's tax returns).
Notwithstanding the foregoing, Executive shall not be in breach of
this covenant with respect to any use or disclosure of any
Confidential Information by him which is or becomes available in the
public domain or is required as a result of any legal process served
upon him in any judicial or administrative proceeding (provided that
Executive provides prompt notice of any such process served upon him
in order to enable the Company to timely contest the same, at its
expense), or was obtained by Executive from a third party without such
third party's breach of agreement or obligation of trust.
8. Non-Competition; Non-Solicitation.
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8.1. Executive acknowledges and recognizes the highly
competitive nature of the business and proposed business of the
Company and hereby agrees that, during the Term hereof and for a
period of twenty-four (24) months after the expiration or any earlier
termination of the Term of this Agreement (other than any such earlier
termination of this Agreement pursuant to the provisions of Sections
3.2(b), 3.2(f) (if any such termination without cause occurs after the
first year of the Term hereof), 3.3(a), or 3.3(b) hereof, in which
cases the provisions of this Section 8.1 shall not apply) (such period
to be referred to hereinafter as the "Applicable Period"), he will
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not, directly or indirectly, on his own behalf or in the service of or
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on behalf of others, whether as an officer, director, partner,
trustee, principal, employee, consultant, agent, or owner of any
capital stock, partnership interest or other interest in any
corporation, partnership or other entity, or in any other capacity,
own an interest in, perform any services or conduct any activity for
or on behalf of any entity which is engaged in a business which is in
competition with the business in which the Company is engaged at the
time of termination (such prohibited activities being referred to
herein as a "Precluded Business Activity"). Executive acknowledges
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that, due to the nature of the Company's business, it is essential to
provide for as broad a geographical limitation as possible with
respect to the aforementioned covenant. Without limiting the
generality of the foregoing, it is expressly understood and agreed
that although Executive and the Company consider the restrictions
contained in this Section 8.1 to be reasonable, Executive agrees that
in the event it is finally judicially determined by a court of
competent jurisdiction that the specified time period or geographical
area or scope of the foregoing restriction is unreasonable, arbitrary,
or against public policy, contrary to law, invalid and unenforceable,
the remaining provisions of this Agreement (including the remaining
provisions of this Section) shall not be rendered void, shall not be
affected thereby and shall remain in full force and effect and the
provisions hereof which are the subject of any such judicial
determination shall be deemed amended to apply to any such lesser time
period, geographical area, or scope which is judicially determined or
indicated to be reasonable, non-arbitrary and not violative of public
policy, not contrary to law, invalid and/or unenforceable and such
provisions, as modified, may be enforced by the Company against
Executive in accordance with the terms hereof. Notwithstanding the
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foregoing, nothing contained in this Section is intended to nor shall
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preclude the ownership by Executive of not more than five (5%) percent
of the outstanding securities of any publicly owned corporation or
other entity engaged in a Precluded Business Activity, provided that
such ownership is solely for investment purposes and is not coupled
with any working relationship between Executive and such corporation
or entity.
8.2. Executive will not, at any time during or for
thirty (30) months after the Term hereof, directly or indirectly, (i)
solicit the business of any client or customer of the Company for
purposes of engaging in activities which are the same as the
activities of the Company, or (ii) solicit, interfere with, or
endeavor either to cause any employee, agent, consultant, customer or
supplier of the Company to leave his or her employment with the
Company, or terminate its relationship with the Company, or (iii)
induce or attempt to induce any such employee, agent, consultant,
customer or supplier to breach any employment agreement or other
agreement or arrangement that such employee, agent, consultant,
customer, or supplier may have with the Company.
8.3. Executive hereby acknowledges that the provisions
of Section 7 and of this Section 8 are necessary for the protection
of the Company's business and goodwill and are considered by Executive
to be fair and reasonable. Executive further acknowledges that he has
fully and carefully reviewed, considered and understands all of the
restrictions imposed upon him under Section 7 and this Section 8.
Accordingly, Executive hereby acknowledges and agrees that in the
event of any actual or threatened breach by him of the provisions of
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Section 7 and/or this Section 8, there will be no adequate remedy at
law for any such breach or threatened breach and that any such breach
or threatened breach may cause irreparable harm to the Company and,
therefore, Executive hereby consents in any such instance to the
granting of injunctive or other equitable relief to the Company, as a
non-exclusive remedy, in any court of competent jurisdiction, without
the necessity of showing any actual damage or that monetary damages
would not provide an adequate remedy at a law or posting a bond
therefor.
9. Representations and Warranties. The Company and Executive
hereby represent and warrant to each other as follows:
9.1. All action on the part of the Company and Executive
necessary for the authorization, execution, delivery and performance
of this Agreement and the consummation of the transactions
contemplated hereby, has been taken and this Agreement constitutes a
valid and legally binding obligation of the Company and Executive, as
applicable, enforceable in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, reorganization,
moratorium, or other laws affecting generally the enforcement of
creditors' rights and by general principles of equity.
9.2. The authorization, execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, will not result in any violation or be in
conflict with or constitute, with or without the passage of time and
giving of notice, a breach or default under any provision of any
instrument, judgment, order, writ, decree or agreement to which the
Company or Executive, as applicable, is a party or by which it or he
is bound.
9.3. There is no action, suit, proceeding, or
investigation pending, or to the knowledge of the Company or Executive,
as applicable, currently threatened against the Company or Executive,
as applicable, in any way relating to the validity of this Agreement or
the right of the Company or Executive, as applicable, to enter into or
to perform under this Agreement or consummate the transactions
contemplated hereby.
10. Indemnification.
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10.1. Executive will be entitled to all of the rights
of indemnification granted by the Company to its officers and
directors during the Term hereof (including all indemnification rights
pursuant to the Company's Certificate of Incorporation, By-Laws and
any professional liability insurance policy obtained and maintained by
the Company during the Term hereof).
10.2. It is the intent of this Section 10 to secure for
Executive indemnification rights that are as favorable as may be
permitted by applicable law and public policy. Without limiting the
provisions of Section 10.1 hereof, the Company shall indemnify and
fully defend, save and hold harmless Executive from any damage,
liability, loss, cost or expense (including all reasonable attorneys=
fees and expenses of counsel) (collectively, the "Losses") arising out
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of or resulting from:
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(a) any untruth or inaccuracy in any representation
or warranty of the Company, or the breach of any representation or
warranty of the Company, contained in this Agreement; or
(b) any failure of the Company to perform or observe
any term, provision, covenant or obligation contained in this
Agreement; or
(c) any action or proceeding commenced against
Executive based upon or arising out of the performance of Executive's
services under this Agreement, or services otherwise provided to the
Company and its affiliates, to the fullest extent permitted under
applicable law.
10.3. All costs and expenses reasonably incurred by
Executive in defense of any litigation, including reasonable attorneys=
fees and expenses of counsel, shall be paid from time to time by the
Company in advance of the final disposition of such litigation
promptly upon receipt by the Company of (i) a written request for
payment given from time to time, (ii) appropriate documentation
evidencing the incurrence, amount and nature of the costs and expenses
for which payment is being sought, and (iii) an undertaking adequate
under applicable law made by or on behalf of Executive to repay the
amounts so paid if it shall be determined that Executive is not
entitled to be indemnified by the Company under this Agreement.
10.4 If, with respect to a third party, an event occurs
or is alleged to have occurred and Executive asserts that the Company
has become obligated to provide indemnification to him under this
Section 10 (an "Indemnity Claim"), Executive (the "Indemnitee") shall
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give written notice promptly to the Company (the "Indemnitor"). The
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failure to so notify Indemnitor shall not, however, release Indemnitor
from any obligation or liability it may have to Indemnitee under this
Section except to the extent such failure materially prejudices
Indemnitor. Indemnitor agrees to defend, contest or otherwise protect
Indemnitee against any Indemnity Claim at Indemnitor's sole cost and
expense. Indemnitee shall have the right, but not the obligation, to
participate at Indemnitee's expense in the defense thereof by counsel
of Indemnitee's choice and shall in any event cooperate with and
assist Indemnitor to the extent reasonably possible. If Indemnitor
fails to timely defend, contest or otherwise protect against such
Indemnity Claim, Indemnitee shall have the right to do so, and the
Indemnitee shall be entitled to recover the entire cost thereof from
Indemnitor, including, without limitation, reasonable attorneys' fees,
disbursements and amounts paid as the result of such Indemnity Claim,
and Indemnitor shall be bound by any determination made in such
Indemnity Claim. If Indemnitor assumes the defense of any Indemnity
Claim, (a) it will be conclusively established for purposes of this
Agreement that the claims made in that Indemnity Claim are within the
scope of and subject to indemnification hereunder, (b) no compromise
or settlement of such claims may be effected by Indemnitor without
Indemnitee's written consent (which consent will not be unreasonably
withheld) unless (i) there is no finding or admission of any violation
of federal, state, local, municipal, foreign, international,
multinational or other administrative order, law, ordinance, principal
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of common law, regulation, statute or treaty or any violation of the
rights of any person and no effect on any other claims that may be
made against Indemnitee and (ii) the sole relief provided is monetary
damages that are paid in full by Indemnitor; and (c) Indemnitee will
have no liability with respect to any compromise or settlement of such
claims effected without his written consent. Notwithstanding anything
to the contrary contained in this Section 10, if Indemnitee settles or
compromises any Indemnity Claim without Indemnitor's prior written
consent, Indemnitor shall have no obligation for indemnification under
this Section 10.
10.5 The Company shall procure and maintain a directors
and officers' liability insurance policy covering Executive in amounts
and on terms determined by the current Board. Insurance contemplated
under this Section 10.5 shall (to the extent provided by the terms of
the insurance) inure to the benefit of Executive's heirs, executors
and administrators.
11. Miscellaneous.
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11.1. This Agreement constitutes the sole and entire
agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements, representations,
warranties, statements, promises, information, arrangements and
understandings, whether oral or written, express or implied, between
the parties hereto with respect to the subject matter hereof. This
Agreement may not be changed or modified except by an instrument in
writing signed by the party to be bound thereby.
11.2. All notices, consents, requests, demands and other
communications required or permitted to be given under this Agreement
shall be in writing and delivered personally, receipt acknowledged, or
mailed by registered or certified mail, postage prepaid, return
receipt requested, addressed to the parties hereto as follows (or to
such other address and/or to such other persons as either of the
parties hereto shall specify by notice given in accordance with this
provision):
(a) If to the Company:
Six Diamond Resorts International, S.A.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Gusrae ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, PLLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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and
▇▇▇▇▇ ▇▇▇▇▇▇
c/o Benchmark Equity Group
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▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(b) If to Executive:
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Except as otherwise expressly provided elsewhere in this Agreement,
all such notices, consents, requests, demands and other communications
shall be deemed given when personally delivered as aforesaid, or, if
mailed as aforesaid, on the earlier of (i) the date of receipt or
rejection by the addressee, or (ii) the third business day after the
date of mailing thereof, except for a notice of a change of address
which shall be effective only upon receipt.
11.3. Neither party hereto may assign this Agreement or
their respective rights, benefits or obligations hereunder without the
written consent of the other party hereto, except that if the Company
merges into a public company in connection with the PIPE Offering,
this Agreement will be assigned to and assumed by the successor parent
publicly owned entity on and subject to all of the terms and
conditions contained in this Agreement.
11.4. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors,
heirs, personal representatives, administrators, executors and
permitted assigns. Nothing contained herein is intended to confer
upon any person or entity, other than the parties hereto (and any
successor to the Company pursuant to Section 11.3 hereof), and their
respective successors, heirs, personal representatives,
administrators, executors or permitted assigns, any rights, benefits,
obligations, remedies or liabilities under or by reason of this
Agreement.
11.5. No waiver of this Agreement shall be effective
unless in writing and signed by the party to be bound thereby. The
waiver by either party hereto of a breach of any provision of this
Agreement, or of any representation, warranty, or covenant in this
Agreement by the other party hereto shall not be construed as a waiver
of any subsequent breach or of any other provision, representation,
warranty, or covenant of such other party, unless the instrument of
waiver expressly so provides.
11.6. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas with respect to
contracts made and to be fully performed therein, without regard to
the conflicts of laws principles thereof. The parties hereto hereby
agree that, in the event of any action or proceeding brought by the
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Company against Executive to enforce the provisions of this Agreement,
such action or proceeding shall be brought in a Federal or state court
located in ▇▇▇▇▇▇ County, Texas. By their execution hereof, each of
the Company and Executive hereby consent and irrevocably submit to the
in personam jurisdiction of such Federal and state courts and agree
that any process in any such action or proceeding commenced in any
such court under this Agreement may be served upon him, or it, as
applicable, personally, by certified or registered mail, return
receipt requested, or by Federal Express or other courier service,
with the same full force and effect as if personally served upon him
or it in ▇▇▇▇▇▇ County, Texas, as applicable. Each of the parties
hereto hereby waive any claim that the jurisdiction of any such court
is not a convenient forum for any such action or proceeding and any
defense of lack of in personam jurisdiction with respect thereto. In
the event of any action or proceeding under this Agreement, the party
prevailing therein shall be entitled to payment from the other party
hereto of all of its costs in connection therewith, including its
counsel fees and disbursements.
11.7. The parties hereto hereby agree that, at any time
and from time to time during the Term hereof, upon the reasonable
request of the other party hereto, they shall do, execute, acknowledge
and deliver, or cause to be done, executed, acknowledged and delivered,
such further acts, deeds, assignments, transfers, conveyances and
assurances as may be reasonably required to more effectively
consummate this Agreement and the transactions contemplated thereby or
to confirm or otherwise effectuate the provisions of this Agreement.
11.8. If any term or provision of this Agreement, or the
application thereof to any person or circumstance, is finally
determined by a court or to any extent to be illegal, invalid or
unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as
to which it is held illegal, invalid or unenforceable, shall not be
affected thereby and each term and provision of this Agreement shall
be valid and shall be enforced to the fullest extent permitted
hereunder and by law.
11.9 The parties to this Agreement hereby acknowledge
that they have been represented by separate counsel in connection with
the negotiations and execution of this Agreement.
11.10. The Section headings contained in this
Agreement are for the purpose of convenience only and are not intended
to define or limit the contents of said Sections.
11.11. This Agreement may be executed in one or more
counterparts, each of which, when executed and delivered, shall be
deemed an original, but all of which when taken together, shall
constitute one and the same instrument, and this Agreement may be
completed by facsimile transmission, which transmission will be deemed
to be an original and considered fully legal and binding on all of the
signatories hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the year and date first above written.
WITNESS: SIX DIAMOND RESORTS INTERNATIONAL, S.A.
--------------------------- By:
------------------------------------
--------------------------- ▇▇▇▇▇ ▇▇▇▇▇▇, Chairman
Print Name
WITNESS:
--------------------------- ---------------------------------------
▇▇▇▇▇ ▇▇▇▇
---------------------------
Print Name
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