Exhibit 10.10
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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement"), made this ______ day of
_____, 2002, is entered into by GOTHAM GOLF PARTNERS, L.P., a Delaware limited
partnership with its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Partnership"), GOTHAM GOLF CORP., a Delaware
corporation with its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("GGC"), and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, residing at
_______________________ (the "Employee").
WHEREAS, the Partnership has employed the Employee under the terms of
an Employment Agreement dated January 1, 1999 (the "Prior Agreement");
WHEREAS, the Partnership and the Employee have agreed to enter into
this new Employment Agreement (the "Agreement"), which shall replace and
supersede the Prior Agreement in all respects, effective as of the date hereof
(the Effective Date (as defined in the Agreement and Plan of Merger (the "Merger
Agreement") dated as of February 12, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, trustee, First Union
Management, Inc., a Delaware corporation, the Partnership, 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
Partnership, and Florida Golf Associates, L.P., a Virginia limited partnership);
capitalized terms used but not defined herein shall have the meaning ascribed to
them in the Merger Agreement;
WHEREAS, the Partnership desires to continue to employ the Employee,
and the Employee desires to continue to be employed by the Partnership on the
terms and conditions of the Agreement; and
WHEREAS, GGC desires to employ the Employee, and the Employee desires
to be employed by GGC on the terms and conditions of the Agreement.
NOW, THEREFORE, in consideration of the premises, mutual covenants,
agreements and promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, and intending to be legally bound hereby, the parties agree
as follows:
1. Term of Employment. The Partnership hereby agrees to employ the
Employee, and the Employee hereby accepts employment with the Partnership, upon
the terms set forth in this Agreement, for the period commencing on the date
hereof (the Effective Date of the Merger) (the "Commencement Date") and ending
on the expiration of the Term of this Agreement (as defined below), unless
sooner terminated in accordance with the provisions of Section 4 (the
"Employment Period"). Each 12-month period ending on the anniversary of the
Commencement Date is referred to herein as an "Employment Year." The "Term of
this Agreement" shall initially be the period beginning on the Commencement Date
and ending on the fifth (5th) anniversary thereof. The Employee's employment by
GGC shall cease upon the Employee's termination of employment with the
Partnership pursuant to Section 4.
2. Title; Capacity. The Employee shall serve as President and Chief
Operating Officer of the Partnership and President and Chief Operating Officer
of GGC. The Employee shall be based at the Partnership's headquarters at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The Employee shall be
subject to the supervision of, and shall have such authority as is delegated to
him by, the Executive Committee of the Partnership and the Executive Committee
of GGC.
The Employee hereby accepts such employment and agrees to undertake the
duties and responsibilities inherent in such positions. The Employee agrees to
devote his entire business time, attention and energies to the business and
interests of the Partnership and GGC during the Employment Period.
3. Compensation and Benefits.
3.1 Salary. The Partnership shall pay the Employee, in monthly
installments, an annual base salary (the "Base Salary") of Three Hundred
Thousand Dollars ($300,000), in accordance with the Partnership payroll
policies, for each Employment Year during the Term of this Agreement. The
Employee's Base Salary shall be increased annually by a percentage equal to the
CPI (as defined below) during the full calendar year preceding such Employment
Year. "CPI" shall mean the Consumer Price Index -- all items for the Washington,
D.C. metropolitan area published by the U.S. Bureau of Labor Statistics.
3.2 Fringe Benefits. The Employee shall be entitled to four (4)
weeks of paid vacation during each Employment Year in accordance with the
Partnership's vacation policy. The Employee shall be entitled to the benefits
indicated on Schedule A to this Agreement, as well as such other benefits as the
Partnership establishes and makes available to all of its employees.
3.3 Reimbursement of Expenses. The Partnership shall reimburse the
Employee for all reasonable travel, entertainment and other expenses incurred or
paid by the Employee in connection with, or related to, the performance of his
duties, responsibilities or services under this Agreement (collectively, the
"Expenses"), upon presentation by the Employee of documentation, expense
statements, vouchers and/or such other supporting information as the Partnership
may reasonably request. This reimbursement of Expenses shall be in addition to
the automobile benefit described in Schedule A hereto.
3.4 Stock Options. On the Commencement Date, GGC shall grant the
Employee options to purchase shares of GGC under the Gotham Golf Corp. 2002
Stock Option Plan as set forth in the Gotham Golf Partners, L.P. Consent of
Executive Committee and Partners dated February 12, 2002. Such options shall
vest in equal installments on the first four anniversaries of the Commencement
Date and otherwise be issued pursuant to the terms of GGC's Stock Option Plan.
Notwithstanding the immediately preceding sentence, all such options shall
immediately vest and become exercisable upon the occurrence of (a) a Change in
Control (as defined below), (b) a termination of the Employee's employment by
the Employee for Good Reason or (c) a termination of the Employee's employment
by the Partnership without Cause. For purposes of this Section 3.4, "Change in
Control" shall mean a change in a majority of the members of
the Board within any one-year period as a result of a contested proxy contest at
a time that GGC owns more than 50% of the interests in the Partnership.
3.5 Loan. As of the Commencement Date, GGC shall lend the Employee
$500,000 (the "Loan") pursuant to the terms of the promissory note (the "Note")
substantially in the form attached in Schedule B. On each anniversary of the
Commencement Date (each, an "Anniversary Date") on or prior to the Maturity Date
(as defined in the Note), GGC shall forgive $125,000 of the principal amount of
the Loan, together with any accrued interest with respect to such amount (the
"Forgiven Amount"). In the event that the Maturity Date is prior to the fourth
Anniversary Date, but does not occur on an Anniversary Date, GGC shall forgive
from any unpaid principal of and accrued interest on the Loan an amount equal to
the Forgiven Amount multiplied by a fraction, the numerator of which shall be
(a) the number of days between (1) the Maturity Date and (2) the most recent
prior Anniversary Date (or, if no Anniversary Date has yet occurred, the
Commencement Date) and (b) the denominator of which shall be 365 days.
3.6 Right of Offset. The Employee hereby grants the Partnership and
GGC, upon the exercise by the Employee of any option to purchase GGC common
stock, a right to offset against the outstanding principal and accrued interest
balance on any debt owing to GGC, the Partnership or any of their respective
controlled affiliates by the Employee (other than the Loan) the amount that
would have been payable to Employee had the option been cash settled pursuant to
Section 5(j) of the Stock Option Plan (less any applicable income and
withholding taxes).
4. Employment Termination. The employment of the Employee by the
Partnership pursuant to this Agreement shall terminate upon the occurrence of
any of the following (upon which termination the employment of the Employee by
GGC shall also terminate):
4.1 Expiration of the Employment Period in accordance with Section
1;
4.2 At the election of GGC, for cause, immediately upon written
notice by the Partnership to the Employee. For the purposes of this Section 4.2,
"Cause" shall mean only (a) the conviction of the Employee of, or the entry of a
pleading of guilty or nolo contendere by the Employee to, any felony committed
during the Term of this Agreement involving moral turpitude or dishonesty that
is harmful to the Partnership, or (b) gross negligence or willful misconduct in
the course of his employment described herein; provided, however, that the
Partnership may terminate the Employee pursuant to subsection (b) above only if
(i) the Partnership has provided the Employee with written notice of its
intention to terminate and of the grounds for such termination within thirty
(30) days after the Partnership learns of such event, and (ii) the Employee
either (x) has not, within thirty (30) days following receipt of such notice,
cured such event or (y) if such event cannot be cured within such thirty (30)
day period, has not taken all reasonable steps to cure promptly after notice;
4.3 Upon the death or 30 days after the disability of the Employee.
As used in this Agreement, the term "disability" shall have the meaning provided
in the Partnership's long-term disability policy applicable to the Employee;
4.4 At the election of the Employee, for Good Reason (as defined
below), immediately upon written notice by the Employee to the Partnership,
which notice shall identify in reasonably explicit detail the Good Reason upon
which the termination is based. For the purposes of this Section 4.4, "Good
Reason" for termination shall mean, without the prior written consent of the
Employee, (a) if the position of Chief Executive Officer of the Partnership
and/or GGC becomes available and an individual other than the Employee is
offered such position, (b) a material breach by the Partnership of the terms of
this Agreement, which breach is not remedied by the Partnership within thirty
(30) days following written notice from the Employee to the Partnership
notifying it of such breach, (c) without limiting the generality of the
foregoing, a failure to provide the Executive the Loan within five (5) business
days after the Commencement Date, (d) without the prior written consent of the
Executive or the consent of the Founders Director, as defined in the
Equityholders' Agreement, a change in the business purpose of the Partnership to
a business purpose substantially different from than that described in clause
(i) and (ii) of GGC's Amended and Restated Certificate of Incorporation, or (e)
the relocation of the Employee's place of work more than 25 miles from the
Partnership's current headquarters;
4.5 At the election of the Employee, with or without Cause, upon not
less than thirty (30) days' prior written notice of termination;
4.6 At the election of the Partnership, without Cause, immediately
upon written notice by the Partnership to the Employee.
5. Effect of Termination.
5.1 Termination for Cause or at Election of the Employee. In the
event the Employee's employment is terminated for Cause pursuant to Section 4.2
or at the election of the Employee upon not less than thirty (30) days' prior
written notice of termination pursuant to Section 4.5, the Partnership shall pay
to the Employee the compensation and benefits otherwise payable to him under
Section 3 through the last day of his actual employment by the Partnership. The
Partnership and GGC shall have no further obligations to the Employee and the
Employee shall have no further rights, including, without limitation, rights to
any compensation, whatsoever under this Agreement.
5.2 Termination for Death or Disability. If the Employee's
employment is terminated by death or because of disability pursuant to Section
4.3, the Employee shall be paid the compensation and benefits payable to him
under Section 3 through the last day of his actual employment by the
Partnership, and, in lieu of any other compensation or benefits otherwise
payable to him pursuant to Section 3 with respect to the remainder of the
Employment Period, the Employee shall be entitled to all payments payable to him
pursuant to the terms of the Partnership's long-term disability or life
insurance policy applicable to the Employee.
5.3 Termination for Good Reason or Without Cause. If the Employee's
employment is terminated by the Employee for Good Reason pursuant to Section 4.4
or by the Partnership without cause pursuant to Section 4.6, the Employee shall
be entitled to: (i) his base salary as severance pay in one lump-sum payment for
the longer of (a) the remainder of the Term of this Agreement or (b) one (1)
year from the date of termination; (ii) fringe benefits for the longer of (a)
the remainder of the Term of this Agreement, or (b) one (1) year from the date
of
termination; and (iii) within 120 days following the termination date, the
Employee shall have a right to acquire all of the Partnership's direct and
indirect ownership interest in Monroe Valley Golf Club ("MVGC"), located in
Jonestown, Pennsylvania pursuant to a right of first offer (the "First Offer
Right"). The principal terms of the First Offer Right are set forth on Schedule
C.
5.4 Survival. The provisions of this Section 5 shall survive the
termination or expiration of this Agreement.
5.5 Severance Offset. The Employee hereby grants the Partnership and
GGC a right to offset against the outstanding principal and accrued interest
balance on any debt owing to GGC, the Partnership or any of the controlled
affiliates by the Employee (including the Loan) any amount payable pursuant to
Section 5.3 (less any applicable income and withholding taxes).
6. Non-Compete.
6.1 During the term of the Employee's employment by the Partnership
or GGC hereunder, and if and only if (i) the Employee shall have been terminated
by the Partnership or GGC for cause or (ii) the Employee shall have voluntarily
terminated his employment without Good Reason, then for a period of one (1) year
after such termination, the Employee 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 in 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 Partnership, GGC and/or any of their subsidiaries ("Owning Entity") (i)
within one hundred fifty (150) miles of any golf course managed by the
Partnership 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.
6.2 The Employee covenants and agrees that, during the term of the
Employee's employment with the Partnership or GGC hereunder and for one year
after the termination of the Employee's employment for any reason, the Employee
shall not (x) solicit business on behalf of the Employee or any other person
from any client or customer of the Partnership 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 Partnership or GGC or (y) directly
or indirectly hire, recruit, solicit or induce, or attempt to induce, an
employee or employees of the Partnership or GGC to terminate their employment,
or otherwise cease their relationship with, the Partnership or GGC.
6.3 The Employee acknowledges and agrees that the breach of the
provisions of this Section 6 will cause irreparable injury to the Partnership
and GGC, inadequately compensable in damages. Accordingly, in addition to such
other rights and remedies as the Partnership or GGC may have under this
Agreement, at law or in equity with respect to any breach or threatened breach
of this Agreement, the Partnership and GGC shall be entitled to injunctive
relief against the breach or threatened breach of any of the provisions of this
Section 6, it being
acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Partnership and GGC and that money damages will not
provide an adequate remedy to the Partnership or GGC.
6.4 The Partnership, GGC and the Employee agree and stipulate that
the provisions of this Section 6 are fair and reasonable in light of all of the
facts and circumstances of the relationship between the Partnership, GGC and the
Employee, and the Employee hereby expressly waives any objection to or defense
in respect of the geographical scope and/or duration of the restriction
contained in this Section 6. The Employee acknowledges and agrees that the scope
and duration of these restrictions are reasonable and warranted in order to
protect the Partnership's and GGC's legitimate business interests and rights and
that the Employee's experience and capabilities are such that the Employee will
not be prevented from earning a livelihood in the Employee's area of expertise
as a result of the limited restrictions provided herein. In furtherance and not
in derogation of the provisions of this Section 6, the Partnership, GGC and the
Employee agree that, notwithstanding the foregoing, in the event that a court
should decline to enforce any of the provisions of this Section 6, such
provision or provisions shall be deemed to be modified to preserve the
Employee's restrictions under this Section 6 to the maximum extent, in time,
geography and scope, which the court shall find enforceable.
6.5 The provisions of this Section 6 shall survive the termination
of this Agreement.
7. Proprietary Information and Indemnification.
7.1 Proprietary Information. The Employee shall not, without the
prior written consent of the Partnership, use, divulge, disclose or make
accessible to any other person, firm, partnership, corporation or other entity
any Confidential Information (as hereinafter defined) pertaining to the business
of the Partnership or any of its affiliates, except (i) while employed by the
Partnership, in the business of or for the benefit of the Partnership, or (ii)
when required to do so by a court of competent jurisdiction, by any governmental
agency having supervisory authority over the business of the Partnership, or by
any administrative body or legislative body (including a committee thereof) with
purported or apparent jurisdiction to order the Employee to divulge, disclose or
make accessible such information. For purposes of this Section 7, "Confidential
Information" shall mean non-public information concerning the Partnership's
financial data, strategic business plans, product development (or other
proprietary product data), customer lists, information relating to suppliers and
methods of production and management, marketing plans and other non-public,
proprietary confidential information of the Partnership, its affiliates or its
customers, that, in any case, is not otherwise available to the public, provided
that Confidential Information does not include information that (a) was
previously, is currently or becomes generally available to the public or (b) was
available to the Employee on a non-confidential basis or subsequently becomes
available to the Employee on a non-confidential basis, and provided further that
the source of such information is not bound by a confidentiality agreement
concerning that information.
7.2 Indemnification. The Employee shall be indemnified and held
harmless to the fullest extent permitted by law, as stated more fully in
Schedule D to this Agreement.
7.3 Survival. The provisions of this Section 7 shall survive the
termination of this Agreement.
8. Litigation Fees and Expenses. Notwithstanding any provision of law
or rule of court to the contrary, in the event of any dispute between the
Partnership and/or GGC, on the one hand, and the Employee, on the other hand,
concerning or relating to this Agreement that results in litigation, the
unsuccessful party as determined by a court of competent jurisdiction shall
reimburse the prevailing party for all reasonable attorneys' fees and expenses
incurred by the prevailing party in prosecuting or defending such action.
9. Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if delivered personally or sent by
telecopy machine, Federal Express or other recognized overnight courier,
registered or certified mail, postage prepaid, addressed as follows or to such
other address of which the parties may have given notice:
To the Employee: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Gotham Golf Partners, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
With a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ and ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
If to the Partnership, addressed to the Partnership at the following
address:
Gotham Golf Partners, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
Gotham Golf Partners, L.P.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
and to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
Unless otherwise specified herein, such notices or other communications
shall be deemed to be effective: (a) one (1) business day after deposit with the
courier if sent by Federal Express
or other recognized overnight delivery service; or (b) upon receipt if
accomplished by hand delivery or by telecopied delivery. Any party may, from
time to time, by notice in writing served upon the other party, in the same
manner as prescribed in this Section, designate a different mailing address or a
different or additional person to which all such notices are thereafter to be
addressed.
10. Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular forms of nouns and pronouns shall include the plural,
and vice versa.
11. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, relating to the subject matter of this Agreement,
including, but not limited to, the Prior Agreement dated January 1, 1999. No
representation, inducement, promise, understanding, condition or warranty not
set forth herein has been made or relied upon by any party hereto.
12. Amendment. This Agreement may be amended or modified only by a
written instrument executed by the Partnership, GGC and the Employee.
13. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Delaware.
14. Successors and Assigns. Subject to the terms of Section 4.6, this
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns, including any partnership or other
entity with which or into which the Partnership or GGC may be merged or which
may succeed to its assets or business, provided, however, that the obligations
of the Employee are personal and shall not be assigned by him.
15. Miscellaneous.
15.1 No delay or omission by the Partnership in exercising any right
under this Agreement shall operate as a waiver of that or any other right. A
waiver or consent given by the Partnership on any one occasion shall be
effective only in that instance and shall not be construed as a bar to or waiver
of any right on any other occasion.
15.2 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement. No provision of this Agreement shall
be interpreted or construed against any party hereto solely because such party
or its legal representative drafted such provision. Wherever the word "include,"
"includes" or "including" is used in this Agreement, it shall be deemed to be
followed by the words "without limitation."
15.3 In case any provision of this Agreement shall be invalid,
illegal or otherwise unenforceable, the validity, legality and enforceability of
the remaining provisions shall in no way be affected or impaired thereby.
15.4 This Agreement may be executed in two or more counterparts, and
by facsimile, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
15.5 Neither this Agreement nor any provision hereof is intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year set forth above.
GOTHAM GOLF PARTNERS, L.P.,
a Delaware limited partnership
By:
-----------------------------------
Name:
Title:
GOTHAM GOLF CORP.,
a Delaware corporation
By:
-----------------------------------
Name:
Title:
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
SCHEDULE A
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FRINGE BENEFITS
Term Life Insurance Policy in the principal amount of $1,000,000.
Automobile privileges in accordance with the Partnership's current policies with
respect to provision of automobile benefits.
100% family medical insurance coverage paid by the Partnership, such coverage to
be similar to coverage provided to other officers of the Partnership at a
similar level as the Employee.
Long-Term Disability Insurance
Cellular telephone and wireless email
Sick Leave in accordance with Partnership sick-leave policy as in effect from
time to time.
SCHEDULE B
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SECURED PROMISSORY NOTE
$500,000 Washington, D.C.
______________, 2002
FOR VALUE RECEIVED, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (the "Borrower"), promises to pay to the
order of GOTHAM GOLF PARTNERS, L.P., a Delaware limited partnership (the
"Lender" and together with any subsequent holders thereof, the "Holder"), at its
main office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at
such other place or to such other party as the Holder may from time to time
designate in writing, the principal sum of FIVE HUNDRED THOUSAND AND NO/100
DOLLARS ($500,000) or so much thereof as may remain unpaid, together with
interest thereon from the date hereof until the principal sum is paid in full at
the rate or rates of interest hereinafter set forth, as well as all other
payments which the Borrower may be required to make pursuant to the terms of
this note (the "Note"). All payments shall be applied first to interest due, and
any balance shall be applied in reduction of the principal sum, and all payments
shall be payable in lawful money of the United States of America, which shall be
legal tender for payment of public and private debts at that time of payment.
Capitalized terms used herein and not defined shall have the meanings attributed
to such terms in the Partnership Agreement, as defined below.
This Note evidences, and is given in consideration of, a loan in the principal
amount of $500,000 made and disbursed on the date hereof by the Lender to the
Borrower (the "Loan"). All terms not defined herein shall have the meaning set
forth in the Third Amended and Restated Agreement of Limited Partnership of
Gotham Golf Partners, L.P., dated as of ________ __, 2002, by and among the
Borrower and the other signatories thereto (the "Partnership Agreement"). For
the period from the date hereof through the Maturity Date (as hereinafter
defined), the principal amount of the Loan outstanding will bear interest at
seven percent (7%) per annum, compounding annually (the "Interest Rate"), or, if
less, the maximum amount permitted by applicable law, until all principal and
accrued and unpaid interest are paid in full. All interest shall be computed on
the basis of a 360-day year, in each case for the actual number of days elapsed
in the period during which it accrues.
To the extent permitted by law, if all or a portion of the principal or interest
thereon of any Loan or any other amount payable hereunder shall not be paid when
due, all overdue principal, interest or other amounts due hereunder shall bear
interest payable on demand at a rate per annum that is two (2) percentage points
above the Interest Rate until paid in full. The Borrower shall also indemnify
and hold harmless the Holder from and against any and all liabilities, actual
loss, damages, costs and reasonable out of pocket expenses (including reasonable
attorneys' fees) incurred in connection with the Holder's collection of amounts
overdue hereunder, its enforcement of the Holder's obligations hereunder or
judicial or other governmental proceeding relating to or arising out of the
Holder's use of proceeds of any Loan made hereunder.
Principal of and interest on the Loan shall be due and payable as follows:
(a) This Note shall mature, and the entire unpaid balance of the principal
hereof and all accrued and unpaid interest hereon shall be due and payable, on
the earliest to occur (such date, the "Maturity Date") of: (i) the fourth (4th)
anniversary of the date hereof; (ii) such time as a distribution of net proceeds
of liquidation is made to Borrower pursuant to Article XIII of the Partnership
Agreement; (iii) the date on which the amounts due hereunder become due and
payable pursuant to Section 6 of the Security Agreement by and between the
Borrower and the Lender, of even date herewith (the "Security Agreement"); or
(iv) the date on which the Borrower is no longer employed with the Lender;
provided, however, that this Note shall not mature as a result of (X) the
Lender's termination of his employment for Good Reason (as such term is defined
in that certain Employment Agreement, of even date herewith, by and between the
Borrower, the Lender and Gotham Golf Corp. (the "Employment Agreement")); (Y)
the Borrower's termination of the Lender's employment without cause; or (Z) the
Borrower's death or disability.
(b) Payments of principal and interest hereunder, if any, shall be made by the
Borrower directly to the Holder.
(c) Any Redemption Amount (as defined in the Partnership Agreement) owed to the
Borrower shall not be decreased pursuant to Section 8.6.D of the Partnership
Agreement on account of any unpaid principal of, or any accrued and unpaid
interest on, the Loan.
This Note may be prepaid in whole or in part at any time or from time to time
without penalty. Any partial prepayment hereunder shall be applied first to
outstanding interest and then to the principal amount outstanding under this
Note.
This Note is secured only by the collateral described in that certain Security
Agreement executed and delivered by the Borrower granting to the Holder a
security interest in Borrower's "Partnership Interests" (existing as of the date
hereof or acquired thereafter), as that term is defined in the Partnership
Agreement (the "Borrower's Partnership Interests").
The Lender and any subsequent Holder shall not enforce the liability and
obligation of the Borrower to perform and observe the obligations contained in
this Note by any action or proceeding wherein a money judgement shall be sought
against the Borrower except that the Lender may bring an action or proceeding to
enable the Lender to enforce and realize upon its interest under this Note;
provided, however, that any judgment in any such action or proceeding shall be
enforceable against the Borrower only to the extent of the Security Agreement,
and the Lender, by accepting this Note, agrees that it shall not ▇▇▇ or, seek or
demand any deficiency judgement against the Borrower in any such action or
proceeding under or by reason or under or in connection with this Note and that
the Borrower shall not have any personal liability hereunder.
In case any provision (or any part of any provision) contained in this Note
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision (or remaining part of the affected provision) of this Note, but
this Note shall be construed as if such invalid, illegal or unenforceable
provision
(or any part thereof) had never been contained herein, but only to the extent it
is invalid, illegal or unenforceable.
The Borrower hereby represents and warrants to the Holder that this Note is
given solely in connection with a business or commercial transaction, and that
the funds disbursed pursuant hereto shall be used only in connection with such a
transaction.
This Note is to be construed according to and governed by the laws of the
Commonwealth of Virginia.
[the remainder of this page has been left intentionally blank]
IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and year
first above written.
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
CERTIFICATION
STATE OF _______________________ )
) SS:
COUNTY OF ______________________ )
The undersigned, a Notary Public in and for the jurisdiction aforesaid, does
hereby certify that the foregoing Note described in and secured by that certain
Security Agreement of even date herewith from ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇▇")
to Gotham Golf Partners, L.P., was executed in my presence.
GIVEN under my hand and seal this ___ day of February, 2002.
_________________________ (SEAL)
Notary Public
My commission expires:
----------------------------
Date
SCHEDULE C
----------
FIRST OFFER RIGHT
The Employee shall have a right of first offer (a "First Offer Right")
to acquire all of the Partnership's direct and indirect ownership interest in
Monroe Valley Golf Club ("MVGC"), located in Jonestown, Pennsylvania, on the
terms set forth below. Within 120 days following the Employee's employment
termination date, the Partnership shall offer MVGC for sale to the Employee at
an arm's-length price as determined by the Board, in its sole discretion (the
"Asking Price"). The Employee will be required to accept or decline this offer
within 30 days, and if the Employee does not do so he shall be deemed to have
declined such offer. If the Employee declines to purchase MVGC for the Asking
Price, the Partnership may subsequently sell MVGC to any third party, provided
that if the price offered to such third party is less than 92.5% of the Asking
Price, the Partnership must first provide the Employee with a new opportunity to
acquire MVGC at the price offered to such third party. The Employee would be
required to accept or decline any such offer within 20 days, and if the Employee
did not do so he would be deemed to have declined such offer. Notwithstanding
the foregoing, if a binding agreement for the sale of MVGC has not been entered
into by the Partnership by the second anniversary of the Employee's termination
of employment, the Board shall retain two accredited independent appraisers to
determine the fair market value of MVGC, and, before the 60th day following the
second anniversary of the Employee's termination of employment, MVGC will be
offered for sale to the Employee for the average of the two appraisal values
stated by the independent appraisers. The Employee shall accept or decline this
offer within 20 days. If the Employee does not accept the offer within such
period, the Partnership shall be under no further obligation to offer MVGC for
sale to the Employee or any other party, and shall be free to sell MVGC to any
party at any price at any time, without restriction. If the Employee purchases
MVGC, Section 6 of the Agreement shall not be violated by either (a) the
continued operation of MVGC or (b) the Employee's solicitation for employment of
individuals employed at MVGC at the time of such purchase. Notwithstanding
anything in this Agreement or this Schedule C to the contrary, the Partnership
shall have no obligation pursuant to this First Offer Right if the Employee has
violated his obligations pursuant to Section 6 of this Agreement.
SCHEDULE D
----------
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is entered into as of
the ___ day of ____________, 2002 ("Agreement"), by and among GOTHAM GOLF CORP.,
a Delaware corporation (the "Corporation"), GOTHAM GOLF PARTNERS, L.P., a
Delaware limited partnership (the "Partnership"), and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
("Indemnitee").
WHEREAS, the interpretations of statutes, regulations, charter and
bylaws regarding indemnification of directors and officers and limitation of
liability of directors and officers are too uncertain to provide them with
adequate, reliable knowledge of risks to which they may be exposed by virtue of
serving as directors and officers of a corporation; and
WHEREAS, damages sought by class-action plaintiffs in some cases amount
to substantial dollar amounts and, whether or not the case is meritorious, the
cost of defending these suits is enormous with few individual directors and
officers having the resources to sustain such legal costs or a judgment in favor
of the plaintiffs even in cases where the defendant was neither culpable nor
profited personally to the detriment of the corporation; and
WHEREAS, it is generally recognized that the issues in controversy in
such litigation are usually related to the knowledge, motives and intent of the
director or officer and that he is usually the only witness with firsthand
knowledge of the essential facts or of exculpating circumstances who is
qualified to testify in his defense regarding matters of such subjective nature,
and that the long period of time which normally and usually elapses before such
suits can be disposed of can extend beyond the normal time for retirement for a
director or officer, with the result that he, after retirement, or in the event
of his death, his spouse, heirs, executors, administrators, as the case may be,
may be faced with limited ability, undue hardship and an intolerable burden in
launching and maintaining a proper and adequate defense of such party or his
estate against claims for damages; and
WHEREAS, the charter and bylaws of the Corporation and the rules and
regulations governing the Corporation allow it to indemnify and hold harmless
their management personnel and their affiliates and each of their respective
officers, directors, partners and employees for losses, claims, damages,
expenses or liabilities incurred by such persons by reason of any action,
omission to act or decision made by any such persons in connection with the
business of the Corporation; and
WHEREAS, the Board of Directors (as defined in Article I hereto) has
concluded that it is reasonable, prudent and necessary for the Corporation
contractually to obligate itself to indemnify Indemnitee in reasonable and
adequate manner to the fullest extent permitted by applicable law, to assume for
itself maximum liability for expenses and damages in connection with claims
lodged against them for their decisions and actions and to provide for the
advancement of expenses incurred by Indemnitee;
WHEREAS, as set forth in Section VIII hereof, it is in the interests of
the parties hereto that the Partnership have the same indemnification
obligations to Indemnitee as the indemnification obligations of the Corporation
to Indemnitee; and
WHEREAS, Indemnitee is willing to serve, for or on behalf of the
Corporation on the condition that they be so indemnified;
NOW, THEREFORE, in consideration of the mutual promises made herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
WITNESSETH
I.
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth below:
A. "Board of Directors" shall mean the board of directors of the
Corporation.
B. "Change in Control" shall mean:
(i) the acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of
beneficial ownership of any capital stock of the Corporation if, after such
acquisition, such Person beneficially owns (within the meaning of Rule 13d-3
promulgated under the Exchange Act) 20% or more of either (x) the
then-outstanding shares of common stock of the Corporation (the "Outstanding
Corporation Common Stock") or (y) the combined voting power of the
then-outstanding securities of the Corporation entitled to vote generally in the
election of directors (the "Outstanding Corporation Voting Securities");
provided, however, that for purposes of this subsection (i), the following
acquisitions shall not constitute a Change in Control: (A) any acquisition
directly from the Corporation (excluding an acquisition pursuant to the
exercise, conversion or exchange of any security exercisable for, convertible
into or exchangeable for common stock or voting securities of the Corporation,
unless the Person exercising, converting or exchanging such security acquired
the security directly from the Corporation or an underwriter or agent of the
Corporation), (B) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any corporation controlled
by the Corporation, or (C) any acquisition by any corporation pursuant to a
Business Combination (as defined below) which complies with clauses (x) and (y)
of subsection (iii) of this definition; or
(i) such time as the Continuing Directors (as defined below) do not
constitute a majority of the Board (or, if applicable, the Board of Directors of
a successor corporation to the Corporation), where the term "Continuing
Director" means at any date a member of the Board (x) who was a member of the
Board on the date of the initial adoption of this Plan by the Board or (y) who
was nominated or elected subsequent to such date by at least a majority of the
directors who were Continuing Directors at the time of such nomination or
election or whose election to the Board was recommended or endorsed by at least
a majority of the directors who were Continuing Directors at the time of such
nomination or election; provided, however, that there shall be excluded from
this clause (y) any individual whose initial assumption of office occurred as a
result of an actual or threatened election contest with respect to the election
or removal of
directors or other actual or threatened solicitation of proxies or consents, by
or on behalf of a person other than the Board; or
(ii) the consummation of a merger, consolidation, reorganization,
recapitalization or share exchange involving the Corporation or a sale or other
disposition of all or substantially all of the assets of the Corporation (a
"Business Combination"), unless, immediately following such Business
Combination, each of the following two conditions is satisfied: (x) all or
substantially all of the individuals and entities who were the beneficial owners
of the Outstanding Corporation Common Stock and Outstanding Corporation Voting
Securities immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the then-outstanding shares of common
stock and the combined voting power of the then-outstanding securities entitled
to vote generally in the election of directors, respectively, of the resulting
or acquiring corporation in such Business Combination (which shall include,
without limitation, a corporation which as a result of such transaction owns the
Corporation or substantially all of the Corporation's assets either directly or
through one or more subsidiaries) (such resulting or acquiring corporation is
referred to herein as the "Acquiring Corporation") in substantially the same
proportions as their ownership of the Outstanding Corporation Common Stock and
Outstanding Corporation Voting Securities, respectively, immediately prior to
such Business Combination and (y) no Person (excluding the Acquiring Corporation
or any employee benefit plan (or related trust) maintained or sponsored by the
Corporation or by the Acquiring Corporation) beneficially owns, directly or
indirectly, 20% or more of the then-outstanding shares of common stock of the
Acquiring Corporation, or of the combined voting power of the then-outstanding
securities or such corporation entitled to vote generally in the election of
directors (except to the extent that such ownership existed prior to the
Business Combination).
C. "Disinterested Director" shall mean a director of the Corporation
who neither is nor was a party to the Proceeding in respect of which
indemnification or advance of expenses is being sought by Indemnitee.
D. "Expenses" shall mean, without limitation, expenses of Proceedings
including all attorneys' fees, retainers, court costs, transcript costs, fees of
experts, accounting and witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating or being or preparing to be a witness or party in a Proceeding.
B. "Good Faith" shall mean with respect to a particular Indemnitee,
such Indemnitee having acted in a manner Indemnitee reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to
any criminal Proceeding, such Indemnitee having acted in a certain manner
without reasonable cause to believe his conduct was unlawful.
C. "Liabilities" shall mean liabilities of any type whatsoever,
including, without limitation, any judgments, fines, ERISA liabilities, excise
taxes and penalties, penalties and amounts paid in settlement (including all
interest, assessments and other charges paid or payable in connection with or in
respect of such judgments, fines, penalties or amounts paid in settlement) in
connection with the investigation, defense, settlement or appeal of any
Proceeding or any claim, issue or matter therein.
D. "Official Status" describes the status of a person who is or was a
director or officer of the Corporation, or a member of any committee of the
Board of Directors, and the status of a person who, while a director or officer
of the Corporation, is or was serving at the request of the Corporation as a
director, officer, partner, member, trustee, employee or agent of another
foreign or domestic corporation, partnership, limited liability company or
partnership, joint venture, trust, employee benefit plan or other entity.
E. "Proceeding" includes any threatened, pending or completed action,
suit, arbitration, alternative dispute resolution mechanism, investigation,
administrative hearing or any other actual, threatened or completed proceeding
whether civil, criminal, administrative or investigative, including, without
limitation, any proceeding arising out of or relating to acts or omissions with
respect to any and all related transactions, filings and other actions, whether
or not such acts or omissions occurred prior or subsequent to the formation of
the Corporation prior to or subsequent to the date of this Agreement (including,
without limitation, matters relating to the registration statement and the proxy
statement prospectus included therein filed by the Corporation with the
Securities and Exchange Commission on [DATE], and any amendment or supplement
thereto and suit by Indemnitee seeking to enforce Indemnitee's rights under this
Agreement).
F. "voting securities" shall mean any securities of an entity whose
holder or holders are entitled to vote generally in the election of the Board of
Directors.
II.
TERM OF AGREEMENT
This Agreement shall continue until, and terminate with respect to
Indemnitee upon the later of:
1. 10 years after the date that such Indemnitee shall
have ceased to serve as a director, officer, partner, member,
trustee, employee or agent of the Corporation or of any other
corporation, partnership, limited liability company or
partnership, joint venture, trust, employee benefit plan or
other entity which such Indemnitee served at the request of
the Corporation, or
2. The final termination of any Proceeding then pending
in respect of which such Indemnitee is granted rights of
indemnification of Liabilities or advancement of Expenses
hereunder and of any Proceeding commenced by such Indemnitee
pursuant to Section IV.F (or, if no appeal is made, Section
IV.E) of this Agreement relating thereto.
This Agreement shall be binding upon the Corporation and its successors and
assigns and shall inure to the benefit of Indemnitee and his heirs, executors
and administrators.
III.
SERVICES BY INDEMNITEE, NOTICE OF PROCEEDINGS
AND DEFENSE OF CLAIM
A. Agreement to Serve. Indemnitee shall serve and/or continue to serve,
at the will of the Corporation or under separate contract, if such exists, as a
director or officer of the Corpo-
ration. This Agreement does not create any additional right for Indemnitee to
serve as a director or officer other than at the will of the Corporation or as
otherwise provided by separate contract. Indemnitee's resignation as a director
shall not constitute a breach of this Agreement.
B. Notice of Proceedings. Indemnitee shall notify the Corporation
promptly in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any Proceeding
or matter which may be subject to indemnification of Liabilities or advancement
of Expenses covered hereunder, but Indemnitee's omission to so notify the
Corporation shall not relieve the Corporation from any liability which it may
have to Indemnitee under this Agreement except (i) with respect to Expenses
incurred by or on behalf of Indemnitee with respect to such Proceeding prior to
such notice or (ii) if such omission otherwise materially prejudices the rights
of the Corporation (including, without limitation, the Corporation having lost
any significant substantive or procedural rights with respect to the defense of
any Proceeding). If such omission does materially prejudice the rights of the
Corporation, the Corporation shall be relieved from liability under this
Agreement to the extent of such prejudice; but such omission will not relieve
the Corporation from any liability which it may owe to Indemnitee otherwise than
under this Agreement.
C. Defense of Claims. The Corporation will be entitled to participate
at its own expense in any Proceeding of which it has notice. The Corporation,
jointly with any other indemnifying party similarly notified of any Proceeding,
will be entitled to assume the defense of Indemnitee therein, with counsel
reasonably satisfactory to such Indemnitee; provided, however, that the prior
written consent of Indemnitee shall be required for the Corporation to assume
the defense of Indemnitee in a Proceeding (i) if there has been a Change in
Control in the Corporation, or (ii) if Indemnitee has reasonably concluded that
there may be a conflict of interest between the Corporation and such Indemnitee,
or between one Indemnitee and another, with respect to any Proceeding and has
provided written notice thereof to the Corporation. After receipt of written
notice from the Corporation to Indemnitee of the Corporation's election to
assume the defense of such Indemnitee in any Proceeding (including pending such
Indemnitee's written consent to such assumption), the Corporation will not be
liable to such Indemnitee under this Agreement for any Expenses subsequently
incurred by such Indemnitee in connection with the defense thereof, other than
as otherwise provided below. Indemnitee shall have the right to employ his own
counsel in any such Proceeding, but the fees and Expenses of such counsel
incurred after receipt of written notice from the Corporation of its assumption
of the defense thereof shall be at the expense of such Indemnitee unless:
1. The employment of counsel by such Indemnitee has been
authorized by the Corporation; or
2. The Corporation shall not in fact have employed
counsel to assume the defense of such Indemnitee in such
Proceeding, or such counsel has not in fact assumed such
defense, or such counsel is not acting in connection therewith
with reasonable diligence; and in each such case the fees and
expenses of such Indemnitee's counsel shall be advanced by the
Corporation pursuant to Article V.
D. Settlement of Claims. The Corporation shall not settle any
Proceeding in any manner which would impose any liability, penalty or limitation
on Indemnitee without the writ-
ten consent of such Indemnitee; provided, however, that such Indemnitee shall
not unreasonably withhold, delay or condition consent to any proposed
settlement. Unless there has been a Change in Control, the Corporation shall not
be liable to indemnify Indemnitee under this Agreement or otherwise for any
amounts paid in settlement of any Proceeding effected by such Indemnitee without
the Corporation's written consent. The Corporation shall not unreasonably
withhold, delay or condition its consent to any proposed settlement.
IV.
INDEMNIFICATION
A. In General. The Corporation shall indemnify Indemnitee against any
and all Expenses and Liabilities: (i) as provided in this Agreement, (ii) to the
fullest extent consistent with applicable law in effect on the date hereof and
to such greater extent as applicable law may hereafter from time to time permit,
(iii) for any acts or omissions which occurred prior to Indemnitee becoming a
director of the Corporation, or establishing any formal relationship with the
Corporation. The rights of Indemnitee provided under the preceding sentence
shall include, but shall not be limited to, the rights set forth in this Article
IV. It is expressly agreed and understood that the Corporation's indemnification
to Indemnitee shall be absolute, total and unconditional with respect to any
activity or event, including without limitation the preparation or distribution
of any proxy statement, which occurs prior to the date of commencement of
Indemnitee's service as a director of the Corporation and no process or
procedure shall be needed to establish or confirm such indemnification, except
as may be required by applicable law (provided Indemnitee is notified
appropriately by the Corporation). If any Proceeding arising from any such
action or event is brought against Indemnitee, Indemnitee shall be entitled to
separate independent counsel selected by Indemnitee, with the Expenses thereof
paid by the Corporation.
B. Indemnification of a Party to a Proceeding. Indemnitee shall be
entitled to the rights of indemnification provided in this Section IV.B if, by
reason of his Official Status, he is, or is threatened to be made, a party to
any Proceeding. In accordance with this Section IV.B, Indemnitee shall be
indemnified against all Expenses and Liabilities actually incurred by him or on
his behalf in connection with such Proceeding or any claim, issue or matter
therein, if Indemnitee acted in Good Faith; provided, however, that, if
applicable law so provides, no indemnification against such Expenses and
Liabilities shall be made in respect of any claim, issue or matter in a
Proceeding brought by or in the right of the Corporation as to which a final,
nonappealable judgment has been issued by a court of competent jurisdiction that
Indemnitee is liable to the Corporation, unless and to the extent that such
court shall determine that such indemnification may be made.
A. Indemnification for Expenses of Witness. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee, by reason of such
Indemnitee's Official Status, has prepared to serve or has served as a witness
in any Proceeding, such Indemnitee shall be indemnified against all Expenses
actually and reasonably incurred by or for him in connection therewith and that
are not otherwise reimbursed.
B. Specific Limitations on Indemnification. Notwithstanding anything in
this Agreement to the contrary, the Corporation shall not be obligated under
this Agreement to make any payment to Indemnitee for indemnification with
respect to any Proceeding:
1. To the extent that payment is actually made to such
Indemnitee under any insurance policy or is made to such
Indemnitee by the Corporation otherwise than pursuant to this
Agreement.
2. If a court in such Proceeding has entered a judgment
or other adjudication which is final and has become
nonappealable and established that a claim of such Indemnitee
for such indemnification relates to acts or omissions of such
Indemnitee which are material to the matter giving rise to the
Proceeding and which were not committed or omitted in Good
Faith.
3. If there has been no Change in Control, for
Liabilities in connection with Proceedings settled without the
consent of the Corporation (unless such consent was
unreasonably withheld, delayed or conditioned), provided,
however, that the consent of Indemnitee will not be required
with respect to any Liability for which such Indemnitee is not
entitled to indemnification. If there has been a Change in
Control, the Corporation shall be liable for Liabilities in
connection with Proceedings settled without the consent of the
Corporation.
1. For an accounting of profits made from the purchase
or sale by such Indemnitee of securities of the Corporation
within the meaning of Section 16(b) of the Securities Exchange
Act of 1934 or similar provisions of any federal, state or
local statute or regulation.
2. For any liability of Indemnitee in connection with
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as defined under the United States securities
laws or similar provisions of any state or local statute or
regulation.
C. Determination of Good Faith.xxxx
1. Indemnitee will not be deemed to have acted in Good
Faith if such is proven by clear and convincing evidence by
the Corporation in one of the forums listed below. Such
Indemnitee subject to a claim by the Corporation that he has
not acted in Good Faith shall be entitled to select from among
the following forums in which the validity of the
Corporation's claim will be heard:
(a) The Disinterested Directors, which shall make
such determination by majority vote;
(a) The shareholders of the Corporation, which
shall make such determination by majority vote; or
(b) A panel of three arbitrators, one of whom is
selected by the Corporation, another of whom is selected
by such Indemnitee and the last of whom is selected by
the first two arbitrators so selected.
3. As soon as practicable, and in no event later than
thirty (30) days after written notice of such Indemnitee's
choice of forum pursuant to this Section IV.E, the Corporation
shall, at its own expense, submit to the selected forum in
such manner as such Indemnitee or such Indemnitee's counsel
may reasonably request, its claim that such Indemnitee is not
entitled to indemnification, and the Corporation shall act in
the utmost good faith to assure such Indemnitee a complete
opportunity to defend against such claim. The fees and
Expenses of the selected forum in connection with making the
determination contemplated hereunder shall be paid by the
Corporation, and, to the extent Indemnitee is found not to
have a right to indemnification hereunder, by Indemnitee. If
the Corporation shall fail to submit the matter to the
selected forum within thirty (30) days after such Indemnitee's
written notice or if the forum so empowered to make the
determination shall have failed to make the requested
determination within thirty (30) days after the matter has
been submitted to it by the Corporation, the requisite
determination that such Indemnitee has the right to
indemnification shall be deemed to have been made.
D. Right to Appeal. Notwithstanding a determination by any forum listed
in Section IV.E above that Indemnitee is not entitled to indemnification with
respect to a specific Proceeding, such Indemnitee shall have the right to apply
to the court in which that Proceeding is or was pending, or to any other court
of competent jurisdiction, for the purpose of enforcing such Indemnitee's right
to indemnification pursuant to this Agreement. Indemnitee and the Corporation
shall be precluded from asserting that the procedures and presumptions of this
Agreement are not valid, binding and enforceable. Indemnitee and the Corporation
further agree to stipulate in any such judicial proceeding that each is bound by
all the provisions of this Agreement and is precluded from making any assertion
to the contrary.
G. Directors' and Officers' Liability Insurance. In addition to the
indemnification protection provided to Indemnitee by the other sections of this
Agreement, the Corporation shall also purchase and maintain Directors' and
Officers' Liability Insurance, at its expense and in amounts that are subject to
such terms as shall be determined by the Board of Directors of the Corporation,
to protect Indemnitee against any expense, liability or loss incurred by it or
him in any such capacity, or arising out of his status as an Indemnitee.
V.
ADVANCEMENT OF EXPENSES
A. Advancement of Expenses. The Corporation shall advance to Indemnitee
all Expenses incurred or to be incurred by or for him in connection with (i) any
Proceeding for which such Indemnitee may be entitled to indemnification pursuant
to Article IV above, except with respect to any Proceeding under Section IV.E or
Section IV.F involving such Indemnitee, and (ii) any other action between the
Corporation and such Indemnitee involving the interpretation or enforcement of
the rights of such Indemnitee under this Agreement, in advance of the final
disposition of such Proceeding or other action, provided that such Indemnitee
executes and submits an undertaking to repay Expenses advanced in the form of
Exhibit A attached hereto (the "Undertaking").
B. Procedure for Advancement. The Corporation shall advance Expenses
pursuant to subsection A above within ten (10) business days after the receipt
by the Corporation of an Undertaking. Indemnitee hereby agrees to repay any
Expenses advanced hereunder if it shall
ultimately be determined by a court of competent jurisdiction that such
Indemnitee is not entitled to be indemnified against such Expenses. Any advances
and the undertaking to repay pursuant to this Article V shall be unsecured and
interest free.
VI.
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS
A. Burden of Proof. To the extent consistent with applicable law, in
making a determination with respect to entitlement to indemnification of
Liabilities and advancement of Expenses hereunder, including a determination
pursuant to Section IV.F, the person or persons or entity making such
determination shall consider Indemnitee's right to such entitlement de novo and
such Indemnitee shall not be prejudiced by reason of a prior determination that
such Indemnitee is not entitled to indemnification. The person or persons making
such determination shall also presume that Indemnitee is entitled to
indemnification and advancement of Expenses under this Agreement, which
presumption the Corporation shall have the burden of proof to overcome.
B. Effect of Other Proceedings. The termination of any Proceeding or of
any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, shall not of
itself affect the right of Indemnitee to indemnification or create a presumption
that such Indemnitee did not act in Good Faith.
C. Actions of Others. The knowledge and/or actions, or failure to act,
of any director, officer, agent or employee of the Corporation (other than
Indemnitee) shall not be imputed to Indemnitee for purposes of determining the
right to indemnification under this Agreement.
VII.
NON-EXCLUSIVITY, SUBROGATION AND MISCELLANEOUS
A. Non-Exclusivity. The rights of Indemnitee hereunder shall not be
deemed exclusive of any other rights to which such Indemnitee may at any time be
entitled under any provision of law, regulation, the Corporation's charter,
bylaws, vote of shareholders, resolution of directors or otherwise and, to the
extent that during the term of this Agreement the rights of the then existing
directors and officers are more favorable to such directors and officers than
the rights currently provided to Indemnitee under this Agreement, Indemnitee
shall be entitled to the full benefits of such more favorable rights.
B. Subrogation. In the event of any payment under this Agreement, the
Corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of Indemnitee to whom such payment is made. Indemnitee shall
execute all documents required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the
Corporation to bring suit to enforce such rights.
C. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (i)
delivered by hand and receipted for by the party to whom said notice or other
communication shall have been directed, when received, or (ii) mailed by
certified or registered mail with postage prepaid, on the third business day
after the date on which it is so mailed:
If to Indemnitee, addressed to Indemnitee at the following
address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Gotham Golf Partners, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇ and ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
If to the Corporation, addressed to the Corporation at the
following address:
Gotham Golf Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Partnership, addressed to the Partnership at the
following address:
Gotham Golf Partners, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address as may have been furnished to Indemnitee by
the Corporation or to the Corporation by Indemnitee, as the case may
be.
D. GOVERNING LAW. THE PARTIES AGREE THAT THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS
OF THE STATE OF DELAWARE WITHOUT REGARD TO ITS CHOICE OF LAW RULES.
E. Entire Agreement. This Agreement constitutes the entire agreement
and understanding between the parties hereto in reference to the subject matter
hereof; provided, however, that the parties acknowledge and agree that the
charter and bylaws of the Corporation may contain provisions on the subject
matter hereof and that this Agreement is not intended to, and does not, limit
the rights or obligations of the parties hereto pursuant to such instruments.
F. Successors and Assigns. The rights, benefits, responsibilities and
obligations arising hereunder shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, executors, assigns, successors,
affiliates, agents, and representatives.
G. Amendment of Agreement and Schedules. No amendment, alteration,
rescission or replacement of this Agreement or any provision hereof shall (i) be
effective as to Indemnitee or the Corporation unless executed in writing by
Indemnitee affected thereby and the Corporation if affected thereby or (ii) be
effective as to Indemnitee with respect to any action or inaction by such
Indemnitee in Indemnitee's Official Status prior to such amendment, alteration,
rescission or replacement.
H. Titles. The titles to the articles and sections of this Agreement
are inserted for convenience or reference only and should not be deemed a part
hereof or affect the construction or interpretation of any provisions hereof.
I. Invalidity of Provisions. Every provision of this Agreement is
severable, and the invalidity or unenforceability of any term or provision shall
not affect the validity or enforceability of the remainder of this Agreement.
J. Pronouns and Plurals. Whenever the context may require, any pronoun
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns, pronouns and verbs shall include
the plural and vice versa.
K. Severability. If any provision or provisions of this Agreement shall
be held to be invalid, illegal or unenforceable for any reason whatsoever:
1. the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each
portion of any Article of this Agreement containing any such provision
held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby; and
2. to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Article
of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent
manifested thereby.
L. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together constitute one agreement binding on all the parties hereto.
VIII.
OBLIGATIONS OF PARTNERSHIP
The Partnership shall have the same obligations to Indemnitee as the
obligations of the Corporation hereunder, the Partnership hereby acknowledging
and confirming to Indemnitee (a) that the services of Indemnitee as a director
and/or an officer of the Corporation are important and valuable to the
Partnership because of the Corporation's status as general partner of the
Partnership, and (b) that the business and affairs of the Corporation are
conducted primarily through, and the assets of the Corporation are owned
primarily by, the Partnership. Without limiting the other provisions of this
Agreement, Indemnitee shall be entitled to indemnification and to his other
rights hereunder with respect to matters arising in the conduct of the affairs
of the Corporation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
GOTHAM GOLF CORP.,
a Delaware corporation
By:
-----------------------------------
Name:
Title:
GOTHAM GOLF PARTNERS, L.P.,
a Delaware limited partnership
By:
-----------------------------------
Name:
Title:
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
EXHIBIT A
FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED
Re: Undertaking to Repay Expenses Advanced
Ladies and Gentlemen:
Pursuant to the Indemnification Agreement dated as of the _____ day of
_______________, 2001 by and among Gotham Golf Corp. (the "Corporation"), Gotham
Golf Partners, L.P (the "Partnership") and Indemnitee, the undersigned is
Indemnitee and is thereby entitled to advancement of expenses in connection with
[DESCRIPTION OF PROCEEDING] (the "Proceeding"). Terms used herein and not
otherwise defined shall have the meanings specified in the Indemnification
Agreement.
I am subject to the Proceeding by reason of my Official Status or by
reason of actions allegedly taken or omitted by me in such capacity. During the
period of time to which the Proceeding relates I was [(NAME OF POSITION HELD)]
of the Partnership. Pursuant to Section V of the Indemnification Agreement, the
Corporation is obligated to advance to me Expenses that are reasonably incurred
by or for me in connection with the Proceeding, provided that I execute and
submit to the Corporation an Undertaking in which I undertake to (i) repay the
Corporation for any Expenses paid by it on my behalf if it shall be ultimately
determined that I am not entitled to be indemnified by the Corporation against
such Expenses, within 30 days of such ultimate determination, and (ii)
reasonably evidence the Expenses incurred by or for me.
[DESCRIPTION OF EXPENSES INCURRED OR TO BE INCURRED BY OR FOR
INDEMNITEE]
This letter shall constitute my undertaking to repay to the Corporation
any Expenses paid by it on my behalf in connection with the Proceeding if it is
ultimately determined that I am not entitled to be indemnified by the
Corporation with respect to such Expenses as set forth above.
--------------------------------
Signature
--------------------------------
Name
--------------------------------
Date
