EXHIBIT B
FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(W. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇)
November 7, 1999
THIS FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is
dated as of November 7, 1999, between Golf Trust of America, Inc., a Maryland
corporation, having its principal place of business at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and W. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇, an
individual residing at the address set forth below his name on the signature
page hereof (the "Executive").
COMPANY AND EXECUTIVE ENTER THIS AGREEMENT on the basis of the following
facts, understandings and intentions:
A. the Executive has been an executive of the Company employed under that
certain Employment Agreement dated as of February 7, 1997 (the "Original
Agreement"), which employment commenced on the date of the closing of the
Company's initial public offering, February 12, 1997 (the "Commencement Date");
B. the Executive desires to remain in the employ of the Company;
C. the Company values Executive's knowledge and familiarity with the
business of the Company and desires to assure itself of the continued services
of Executive; and
D. Company and Executive desire to amend and restate the Original Agreement
as set forth below.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the Company and Executive agree as follows:
1. Employment. The Company hereby agrees to employ the Executive, and the
Executive hereby agrees to be employed by the Company, on the terms and
conditions set forth herein.
2. Term. The employment of the Executive by the Company as provided in
Section 1 above will commence on the date set forth above (the "Commencement
Date"), and will terminate on February 7, 2004 (such term being the "Original
Term"), unless earlier terminated pursuant to the provisions of Section 5 of
this Agreement. On the final day of the Original Term and on each one (1) year
anniversary thereafter (each an "Extension Date"), the term of this Agreement
shall be extended automatically to commence on the Extension Date and terminate
on the three (3) year anniversary of the Extension Date (each such period being
a "Renewal Term"), unless written notice that this Agreement will not be so
extended is given by either party to the other at least three (3) years prior to
the Extension Date. The Original Term and any Renewal Terms, in their full
duration, are herein individually referred to as "Employment Terms," and the
period of the Executive's employment under this Agreement consisting of the
Original Term and all Renewal Terms, except as may be terminated early pursuant
to Section 5, is herein referred to as the "Employment Period."
3. Position.
(a) Title and Position. During the Employment Period, the Executive shall
be employed as an executive officer of the Company with the title of President
and Chief Executive Officer or in such other executive position as the Board of
Directors of the Company (the "Board") may from time to time determine with the
consent of the Executive. In addition, for so long as the Executive is an
employee of the Company and is elected by the Company's shareholders, the
Executive hereby agrees to serve as a member of the Board. The Executive
understands that his position as a member of the Board is subject to the
nomination by the Company; provided that the Executive shall be a member of the
Board with a three (3) year term prior to the time the Company consummates any
public offering of securities and the Company agrees to use permissible
commercially reasonable efforts (subject to the exercise of its fiduciary
duties) to cause the nomination and election of the Executive to the Board
following any such public offering, subject to the terms and conditions of this
Agreement. In the performance of his duties as an officer, the Executive shall
be subject to the direction of the Board, and shall not be required to take
direction from or report to any other person. Executive's duties and authority
shall be commensurate with his title and position with the Company.
(b) Place of Employment. During the term of this Agreement, the Executive
shall perform the services required by this Agreement at the Company's place of
business in Charleston, South Carolina; provided, however, that the Company may
require the Executive to travel to other locations on the Company's business.
(c) Duties. The Executive shall devote commercially reasonable efforts and
substantially full working time and attention to the promotion and advancement
of the Company and its welfare. The Executive shall serve the Company faithfully
and to the best of his ability, and shall perform such services and duties in
connection with the business, affairs and operations of the Company as may be
assigned or delegated to him from time to time by or under, and in accordance
with, the authority and direction of the Board. The Company shall retain the
right to direct and control the means and methods by which the Executive
performs the above services.
(d) Other Activities. Except with the prior written approval of the Board
(which the Board may grant or withhold in its sole and absolute discretion) and
except as may be set forth in Section 9 of this Agreement, the Executive, during
the Employment Period, will not (i) accept any other employment, or (ii) engage,
directly or indirectly, in any other business activity (whether or not pursued
for pecuniary advantage) that is or may be competitive with, or that might place
him in a competing position to, that of the Company or any of its affiliates.
Notwithstanding the foregoing, the Company agrees that the Executive (or
affiliates of the Executive) shall be permitted (i) to undertake the activities
set forth in Section 9, and (ii) to make any other passive personal investment
that is not in a business activity competitive with the Company.
4. Compensation and Related Matters.
(a) Base Salary. The Company shall pay the Executive a base salary at a
rate of Two Hundred Fifty Thousand Dollars ($250,000) per year during the first
full calendar year of the Original Term. The Executive's base salary for each
succeeding year shall, at a minimum, be increased over the prior year by a
factor measured by the increase, if any, in the Consumer Price Index for Wage
Earners and Clerical Workers (as published by the Bureau of Labor Statistics).
The base salary may further be increased, but not decreased, in succeeding years
by an amount determined by the Compensation Committee of the Board. All salary
shall be paid according to the standard payroll practices of the Company
(regarding, e.g., timing of payments, standard employee deductions, income tax
withholdings, social security deductions, and etc.) as in place from time to
time.
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(b) Business and Professional Expenses. The Company shall reimburse the
Executive for (i) personal expenditures incurred by the Executive in connection
with the conduct of the Company's business including, without limitation, a
prospectively paid automobile allowance, and (ii) reasonable expenditures
incurred by the Executive in connection with maintaining his professional
standing including, without limitation, bar association dues and fees and
continuing legal education expenses, in every case upon presentation of
sufficient evidence of such expenditures as may be required by the Company's
policies as in place from time to time.
(c) Benefit Plan Eligibility. During the Employment Period, the Executive
shall be entitled to participate in any benefit plans that are made generally
available to executive officers of the Company from time to time, including,
without limitation, any deferred compensation, health, dental, life insurance,
long-term disability insurance, retirement, pension or 401(k) savings plan.
Nothing in this Section 4(c) is intended, or shall be construed, to require the
Company to institute or to continue any, or any particular, plan or benefit.
(d) Performance Bonus. The Compensation Committee of the Board may
establish and administer a performance bonus program for the Executive to
provide for payment of a (cash and/or non-cash consideration) bonus to the
Executive upon the achievement of certain performance objectives to be
established by the Compensation Committee for the Executive. If such a program
is established, the Compensation Committee of the Board shall monitor, review
and modify the program from time to time as necessary to reflect the Executive's
contributions to the Company.
(e) Stock Incentive Plan. The Compensation Committee of the Board shall
establish and administer one or more stock-based incentive plans in which the
Executive shall be eligible to participate according to their terms; provided,
however, that the Board of Directors shall approve, prior to the completion of
the Company's initial public offering, a grant of options to the Executive to
purchase up to one hundred fifty thousand (150,000) shares of the Company's
common stock, which options shall become exercisable in three (3) equal
installments commencing upon the first anniversary of the date of grant and each
of the two (2) years thereafter, and shall be exercisable for ten (10) years
from the date of grant at the fair market value of the common stock on the date
of grant.
(f) Fringe Benefits. The Executive will be entitled to fringe benefits as
may be determined or granted from time-to-time under the authority of the Board;
provided, however, that the Company shall provide the fringe benefits authorized
by the Board on April 25, 1997 (which resolution is attached to this Agreement
as Exhibit A) and shall not reduce or modify those benefits in a manner adverse
to the Executive without the written consent of the Executive.
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(g) Vacation and Holidays. The Executive shall be entitled to four (4)
weeks (twenty (20) business days) of paid vacation time in each calendar year on
a pro-rated basis. The Executive shall be entitled to all paid Company holidays.
(h) Directors and Officers Insurance and Indemnification. The Company shall
maintain insurance to insure the Executive against any claim arising out of an
alleged wrongful act by the Executive while acting as a director or officer of
the Company. The Company shall further indemnify and exculpate from money
damages the Executive to the fullest extent permitted under applicable law.
(i) Performance Reviews. At the end of each fiscal year, the Board or the
Compensation Committee thereof will review the Executive's job performance and
will provide the Executive a written review of the Executive's job performance
during the prior year and implement any Board authorized revisions to the
Executive's position, compensation and duties at the Company; provided, however,
that the provisions set forth in this Agreement with respect to the Executive's
compensation, and other terms and conditions of the Executive's employment at
the Company shall not be modified by the Board in a manner which would result in
less favorable or less beneficial terms or conditions thereof being imposed on
the Executive without the Executive's full concurrence and consent.
5. Termination. The Executive's employment hereunder shall be, or may be,
as the case may be, terminated under the following circumstances:
(a) Death. The Executive's employment under this Agreement shall terminate
upon his death.
(b) Disability. The Executive's employment under this Agreement shall
terminate upon the Executive's physical or mental disability or infirmity which,
in the opinion of a competent physician selected by the Board, renders the
Executive unable to perform his duties under this Agreement for more than one
hundred twenty (120) days during any one hundred eighty (180) day period.
(c) Employment-At-Will; Termination by Company for Any Reason. The
Executive's employment hereunder is "at will" and may be terminated by the
Company at any time with or without Good Reason (as defined in Section 7(c)
below), by a majority vote of all of the members of the Board of Directors upon
written Notice of Termination (as defined below) to Executive, subject only to
the severance provisions specifically set forth in Section 7 below.
(d) Voluntary Resignation. The Executive may voluntarily resign his
position and terminate his employment with the Company at any time by delivery
of a written notice of resignation to the Company (the "Notice of Resignation").
The Notice of Resignation shall set forth the date such resignation shall become
effective (the "Date of Resignation"), which date shall in any event, be at
least ten (10) days and no more than thirty (30) days from the date the Notice
of Resignation is delivered to the Company. The Notice of Resignation shall be
sufficient notice under Section 2 above to prevent the automatic extension of
this Agreement, if timely given according to the terms of Section 2.
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(e) Notice. Any termination of the Executive's employment by the Company
shall be communicated by written Notice of Termination to the Executive. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice that
indicates the specific termination provision in this Agreement relied upon and
sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated. The Notice of Termination shall be sufficient notice under Section 2
above to prevent the automatic extension of this Agreement, if timely given
according to the terms of Section 2.
(f) Date of Termination. "Date of Termination" shall mean (i) if the
Executive's employment is terminated by his death, the date of his death; (ii)
if the Executive's employment is terminated by reason of his disability, the
date of the opinion of the physician referred to in Section 5(b), above; (iii)
if the Executive's employment is terminated by the Company for Good Reason or
without Good Reason by the Company pursuant to Section 5(c) above, the date
specified in the Notice of Termination; and (iv) if the Executive voluntarily
resigns pursuant to Section 5(d) above, the Date of Resignation set forth in the
Notice of Resignation.
6. Obligations Upon Termination.
(a) Return of Property. The Executive hereby acknowledges and agrees that
all personal property and equipment furnished to or prepared by the Executive in
the course of or incident to his employment belongs to the Company and shall be
promptly returned to the Company upon termination of the Employment Period.
(b) Complete Resignation. Upon the expiration of the Employment Period or
any termination of employment under Section 5 above, the Executive shall be
deemed to have resigned from all offices and directorships then held with the
Company or any of its subsidiaries.
(c) Survival of Representations, Warranties, Covenants and Other
Provisions. The representations and warranties contained in this Agreement and
the parties' obligations under this Section 6 and Sections 7 through 9 and 16
through 18, inclusively, shall survive termination of the Employment Period and
the expiration of this Agreement.
(d) Release. In exchange for the Company entering into this Agreement, the
Executive agrees that, at the time of his resignation or termination from the
Company, he will resign from the Board and will execute a release acceptable to
the Company of all liability of the Company and its officers, shareholders,
employees and directors to the Executive in connection with or arising out of
his employment with the Company, except with respect to (i) any then-vested
rights under any of the Company's stock incentive plans or in connection with
other stock-based compensation; (ii) any deferred compensation held in trust
under the Company's Deferred Compensation Plan; (iii) any Severance Payments or
benefits which may be payable to him under Section 7 or other provisions of this
Agreement; and (iv) any continuation of health or other benefit plans in
accordance with this Agreement or as may be required by law.
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7. Compensation Upon Termination. The Executive shall be entitled to the
following post-termination payments:
(a) Death. If the Executive's employment is terminated by reason of death
pursuant to Section 5(a), the Company shall pay the Executive his base salary
payable under Section 4(a) as in effect on the Date of Termination plus the
greater of (1) the average value of the cash and non-cash consideration received
by Executive as a performance bonus in years 1997, 1998 and 1999 or (2) the
value of the then-most-recent calendar year's annual cash and non-cash
consideration received by Executive as a performance bonus (the "Severance
Payments"), paid in semi-monthly installments for the greater of (i) three (3)
years following the Date of Termination, or (ii) the time period beginning on
the Date of Termination and ending on the final day of the final Employment Term
determined according to Section 2, above. In addition, immediately prior to the
Date of Termination the vesting of all stock-related compensation previously
granted to the Executive shall be accelerated such that none of such
compensation is subject to forfeiture and such that any stock options or similar
rights previously granted to the Executive shall become immediately vested and
exercisable; provided, however, that all stock-related compensation shall be
subject to the plan under which it was granted, if any, as such plan may be
amended from time to time in accordance with its terms. In addition, during the
greater of the time periods in the preceding clauses (i) and (ii), the
Executive, his estate and dependents shall continue to participate, at their
option, in all benefit plans described in Section 4(c) and shall continue to
receive all fringe benefits described in Section 4(f) in each case substantially
comparable to those in effect on the day before the Date of Termination.
Thereafter, at their own expense, the Executive's dependents shall be entitled
to any continuation of health insurance coverage rights required by any
applicable law.
(b) Disability. If the Executive's employment is terminated by reason of
disability pursuant to Section 5(b), the Executive shall receive Severance
Payments for the greater of (i) three (3) years following the Date of
Termination, or (ii) the time period beginning on the Date of Termination and
ending on the final day of the final Employment Term determined according to
Section 2, above; provided, however, that Severance Payments otherwise payable
to the Executive under this Section 7(b) shall be reduced by the sum of the
amounts, if any, payable to the Executive at or prior to the time of any such
Severance Payment under any disability benefit plan of the Company. In addition,
immediately prior to the Date of Termination the vesting of all stock-related
compensation previously granted to the Executive shall be accelerated such that
none of such compensation is subject to forfeiture and such that any stock
options or similar rights previously granted to the Executive shall become
immediately vested and exercisable; provided, however, that all stock-related
compensation shall be subject to the plan under which it was granted, if any, as
such plan may be amended from time to time in accordance with its terms. In
addition, during the greater of the time periods in the preceding clauses (i)
and (ii), the Executive shall continue to participate, at his option, in all
benefit plans described in Section 4(c) and shall continue to receive all fringe
benefits described in Section 4(f) in each case substantially comparable to
those in effect on the day before the Date of Termination. Thereafter, at the
Executive's own expense, the Executive and his dependents shall be entitled to
any continuation of health insurance coverage rights required by any applicable
law.
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(c) Termination by Company.
(i) For Good Reason. If the Executive's employment is terminated by
the Company pursuant to Section 5(c) for Good Reason (as defined below), the
Company shall pay the Executive his base salary and any bonus due and payable
pursuant to Section 4(d) through the Date of Termination. In addition, the
Executive shall be entitled to retain such stock-based compensation (including,
without limitation, shares of restricted stock and/or options to purchase
securities of the Company granted or sold to the Executive pursuant to the terms
and conditions of any of the Company's stock incentive plans or otherwise) as
has vested as of the Date of Termination. At the Executive's own expense, the
Executive and his dependents shall also be entitled to any continuation of
health insurance coverage rights required by any applicable law.
(ii) Without Good Reason. If the Executive's employment is terminated
by the Company pursuant to Section 5(c) without any Good Reason, the Company
shall pay the Executive the Severance Payment for the greater of (A) three (3)
years following the Date of Termination, or (B) the time period beginning on the
Date of Termination and ending on the final day of the final Employment Term
determined according to Section 2, above. In addition, immediately prior to the
Date of Termination the vesting of all stock-related compensation previously
granted to the Executive shall be accelerated such that none of such
compensation is subject to forfeiture and such that any stock options or similar
rights previously granted to the Executive shall become immediately vested and
exercisable; provided, however, that all stock-related compensation shall be
subject to the plan under which it was granted, if any, as such plan may be
amended from time to time in accordance with its terms. In addition, during the
greater of the time periods in the preceding clauses (A) and (B), the Executive
shall continue to participate, at his option, in all benefit plans described in
Section 4(c) and shall continue to receive all fringe benefits described in
Section 4(f) in each case substantially comparable to those in effect on the day
before the Date of Termination. Thereafter, at the Executive's own expense, the
Executive and his dependents shall be entitled to any continuation of health
insurance coverage rights required by any applicable law.
(iii) "Good Reason" means a finding by the Board that (A) the
Executive materially breached any of the material terms of this Agreement; or
(B) the Executive acted with gross negligence, willful misconduct or
fraudulently in the performance of his duties hereunder.
(d) Voluntary Resignation.
(i) For Good Cause. If the Executive terminates his employment with
the Company pursuant to Section 5(d) for Good Cause (as defined below), the
Company shall pay the Executive the Severance Payment for the greater of (A)
three (3) years following the Date of Termination, or (B) the time period
beginning on the Date of Termination and ending on the final day of the final
Employment Term determined according to Section 2, above. In addition,
immediately prior to the Date of Termination the vesting of all stock-related
compensation previously granted to the Executive shall be accelerated such that
none of such compensation is subject to forfeiture and such that any stock
options or similar rights previously granted to the Executive shall become
immediately vested and exercisable; provided, however, that all stock-related
compensation shall be subject to the plan under which it was granted, if any, as
such plan may be amended from time to time in accordance with its terms. In
addition, during the greater of the time periods in the preceding clauses (A)
and (B), the Executive shall continue to participate, at his option, in all
benefit plans described in Section 4(c) and shall continue to receive all fringe
benefits described in Section 4(f) in each case substantially comparable to
those in effect on the day before the Date of Termination. Thereafter, at the
Executive's own expense, the Executive and his dependents shall be entitled to
any continuation of health insurance coverage rights required by any applicable
law.
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(ii) Without Good Cause. If the Executive terminates his employment
with the Company pursuant to Section 5(g) without Good Cause, the Company shall
have no obligation to compensate the Executive following the Date of
Resignation. However, the Executive shall be entitled to retain such stock-based
compensation (including, without limitation, shares of restricted stock and/or
options to purchase securities of the Company granted or sold to the Executive
pursuant to the terms and conditions of any of the Company's stock incentive
plans or otherwise) as has vested as of the Date of Termination. In any event,
at the Executive's own expense, the Executive and his dependents shall be
entitled to any continuation of health insurance coverage rights required by any
applicable law.
(iii) "Good Cause" means the occurrence, without the express written
consent of the Executive, of any of the following events, unless such event is
substantially corrected within ninety (90) days following written notification
by Executive to the Company that he intends to terminate his employment under
this Agreement because of such event:
(A) any reduction or diminution in the compensation, benefits or
responsibilities of the Executive without his written consent;
(B) any material breach or material default by the Company under any
material provision of this Agreement;
(C) any relocation of the Company's principal place of business from
Charleston County, South Carolina; or
(D) any Change in Control (as defined below).
(iv) "Change in Control" means the occurrence of any of the following
events after the effective date of the first initial public offering of the
Company's common stock:
(A) the Board adopts a plan relating to the liquidation or dissolution or
merger of the Company;
(B) a Person (as defined below) directly or indirectly becomes the
"beneficial owner" (as such term is defined in Rule 13d-3 and Rule
13d-5 under the Securities Exchange Act of 1934) of more than
twenty-five percent (25%) of the total voting power of the total
outstanding voting securities of the Company on a fully diluted basis;
provided, however, that beneficial ownership of partnership units in
Golf Trust of America, L.P. shall not be considered beneficial
ownership of voting securities of the Company;
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(C) a Person directly or indirectly acquires or agrees to acquire all or
substantially all of the assets and business of the Company;
(D) for any reason during any period of two (2) consecutive years (not
including any period prior to the date of this Agreement) a majority
of the Board is constituted by individuals other than (1) individuals
who were directors immediately prior to the beginning of such period,
and (2) new directors whose election by the Board or nomination for
election by the Company's shareholders was approved by a vote of at
least two-thirds (2/3) of the directors then still in office who
either were directors immediately prior to the beginning of the period
or whose election or nomination for election was previously so
approved.
(v) For purposes of this Section 7(d), "Person" means any natural
person, corporation, or any other entity; provided, however, that the term
"Person" shall not include any shareholder or employee of the company on the
date immediately prior to the initial public offering of the Company's common
stock or any estate or member of the immediate family of such a shareholder or
employee.
(e) Any Severance Payments made pursuant to this Section 7 shall be payable
in equal semi-monthly installments over the required duration set forth herein.
(f) If, in spite of the provisions above entitling the Executive to
benefits under any benefit plan, such benefits are not payable or provideable
under any such plan to the Executive, or to the Executive's dependents,
beneficiaries or estate, because the Executive is no longer deemed to be an
employee of the Company, then the Company shall independently pay or provide for
payment of such benefits for the remainder of the Employment Term.
(g) The continuing obligation of the Company to make any Severance Payment
to the Executive is expressly conditioned upon the Executive complying and
continuing to comply with his obligations and covenants under Sections 6, 8 and
9 of this Agreement following termination of his employment with the Company.
(h) In the event that any payment by or on behalf of the Company or Golf
Trust of America, L.P. to Executive (whether or not such payment is required
under this Agreement) qualifies as an "excess parachute payment" under Section
280G or Section 4999 of the Internal Revenue Code of 1986, as amended (the "Tax
Code"), the Company shall make additional payments in cash to Executive (so
called "gross-up payments") so that the Executive is put in the same after-tax
position as he would have been in had no excise tax been imposed by Section 4999
of the Tax Code (or any successor or similar provision).
8. Covenant of Confidentiality. In addition to the agreements set forth in
Section 6, the Executive hereby agrees that the Executive will not, during the
Employment Period or for one (1) year thereafter directly or indirectly disclose
or make available to any person, firm, corporation, association or other entity
for any reason or purpose whatsoever, any Confidential Information. As used in
this Agreement, "Confidential Information" means: non-public information
disclosed to the Executive or known by the Executive as a consequence of or
through his relationship with the Company, about the Company's subsidiaries,
affiliates and partners thereof, owners, customers, employees, business methods,
public relations methods, organization, procedures or finances, including,
without limitation, information of or relating to properties that the Company or
any of its affiliates, subsidiaries or partners thereof owns or may be
considering acquiring an interest in; provided, however, that the Executive
shall not be obligated to treat as confidential, or return to the Company copies
of, any Confidential Information that (i) was publicly known at the time of
disclosure to the Executive, (ii) becomes publicly known or available thereafter
other than by any means in violation of this Agreement or any other duty owed to
the Company by any person or entity, or (iii) the Executive is required by law
to disclose to a third party.
9. Covenant Not to Compete.
(a) The Executive agrees that during the Employment Period he will devote
substantially his full working time to the business of the Company and will not
engage in any competitive business. Subject to such full-time requirement and
the other restrictions set forth in this Section 9 and Section 3(d) above, the
Executive shall be permitted to continue his existing business investments and
activities and may pursue additional business investments. Without limiting the
foregoing, the Executive specifically covenants that during and after his
employment with the company he shall not:
(i) compete directly with the Company in a business similar to that of
the Company;
(ii) compete directly or indirectly with the Company, its subsidiaries
and/or partners thereof with respect to any acquisition or development of any
real estate project undertaken or being considered by the Company, its
subsidiaries and/or partners thereof at the end of Executive's Employment
Period;
(iii) lend or allow his name or reputation to be used by or in
connection with any business competitive with the Company, its subsidiaries
and/or partners thereof; or
(iv) intentionally interfere with, disrupt or attempt to disrupt the
relationship, contractual or otherwise, between the Company, its subsidiaries
and/or partners thereof, and any lessee, tenant, supplier, contractor, lender,
employee or governmental agency or authority.
(b) Notwithstanding anything to the contrary in this Section 9 or elsewhere
in this Agreement, the Executive shall be permitted, at his option, to invest in
residential real estate developments and resort operations in which ▇▇▇▇▇ ▇.
▇▇▇▇▇ or his affiliates now or hereafter participate.
(c) The provisions of this Section 9 shall survive for one (1) year and no
longer following the termination of the Employment Period regardless of whether
such termination is for Good Cause or without Good Reason or otherwise;
provided, however, that if the Executive resigns or is terminated during the
twelve months following a Change in Control (as defined in Section 7(d)) then
the provisions of this Section 9 shall not survive the Executive's resignation
or termination.
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10. Injunctive Relief and Enforcement. In the event of breach by the
Executive of the terms of Sections 6, 8 or 9, the Company shall be entitled to
institute legal proceedings to enforce the specific performance of this
Agreement by the Executive and to enjoin the Executive from any further
violation of Sections 6, 8 or 9 and to exercise such remedies cumulatively or in
conjunction with all other rights and remedies provided by law and not otherwise
limited by this Agreement. The Executive acknowledges, however, that the
remedies at law for any breach by him of the provisions of Sections 6, 8 or 9
may be inadequate. In addition, in the event the agreements set forth in
Sections 6, 8 or 9 shall be determined by any court of competent jurisdiction to
be unenforceable by reason of extending for too great a period of time or over
too great a geographical area or by reason of being too extensive in any other
respect, each such agreement shall be interpreted to extend over the maximum
period of time for which it may be enforceable and to the maximum extent in all
other respects as to which it may be enforceable, and enforced as so
interpreted, all as determined by such court in such action.
11. Notice. For the purposes of this Agreement, notices, demands and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered, when
transmitted by telecopy with receipt confirmed, or one day after delivery to an
overnight air courier guaranteeing next day delivery, addressed as follows:
If to the Executive: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company: Golf Trust of America, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
O'Melveny & ▇▇▇▇▇ LLP
Embarcadero Center West
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as either party may furnish to the other from time to
time in writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
12. Severability. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect; provided, however, that if any one or more of the terms contained in
Sections 6, 8 or 9 hereto shall for any reason be held to be excessively broad
with regard to time, duration, geographic scope or activity, that term shall not
be deleted but shall be reformed and constructed in a manner to enable it to be
enforced to the extent compatible with applicable law.
11
13. Assignment. This Agreement may not be assigned by the Executive, but
may be assigned by the Company to any successor to its business and will inure
to the benefit and be binding upon any such successor.
14. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
15. Headings. The headings contained herein are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Agreement.
16. Choice of Law and Consent to Jurisdiction. This Agreement shall be
construed, interpreted and the rights of the parties determined in accordance
with the laws of the State of South Carolina (without reference to the choice of
law provisions of the State of South Carolina), except with respect to matters
of law concerning the internal corporate affairs of any corporate entity which
is a party to or the subject of this Agreement, and as to those matters the law
of the jurisdiction under which the respective entity derives its powers shall
govern. All judicial proceedings in connection with this Agreement may be
brought in any state or federal court of competent jurisdiction in Charlotte
City, South Carolina, and each party hereby accepts the non-exclusive
jurisdiction and venue of such courts.
17. LIMITATION ON LIABILITIES. IF EITHER THE EXECUTIVE OR THE COMPANY IS
AWARDED ANY DAMAGES AS COMPENSATION FOR ANY BREACH OR ACTION RELATED TO THIS
AGREEMENT, A BREACH OF ANY COVENANT CONTAINED IN THIS AGREEMENT (WHETHER EXPRESS
OR IMPLIED BY EITHER LAW OR FACT), OR ANY OTHER CAUSE OF ACTION BASED IN WHOLE
OR IN PART ON ANY BREACH OF ANY PROVISION OF THIS AGREEMENT, SUCH DAMAGES SHALL
BE LIMITED TO CONTRACTUAL DAMAGES AND SHALL EXCLUDE (I) PUNITIVE DAMAGES, AND
(II) CONSEQUENTIAL AND/OR INCIDENTAL DAMAGES (E.G., LOST PROFITS AND OTHER
INDIRECT OR SPECULATIVE DAMAGES). THE MAXIMUM AMOUNT OF DAMAGES THAT THE
EXECUTIVE MAY RECOVER FOR ANY REASON SHALL BE THE AMOUNT EQUAL TO ALL AMOUNTS
OWED (BUT NOT YET PAID) TO THE EXECUTIVE PURSUANT TO THIS AGREEMENT THROUGH ITS
NATURAL TERM OR THROUGH ANY SEVERANCE PERIOD, PLUS INTEREST ON ANY DELAYED
PAYMENT AT THE MAXIMUM RATE PER ANNUM ALLOWABLE BY APPLICABLE LAW FROM AND AFTER
THE DATE(S) THAT SUCH PAYMENTS WERE DUE.
18. WAIVER OF JURY TRIAL. TO THE EXTENT APPLICABLE, EACH OF THE PARTIES TO
THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
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19. Entire Agreement. This Agreement contains the entire agreement and
understanding between the Company and the Executive with respect to the
employment of the Executive by the Company as contemplated hereby and no
representations promises agreements or understandings written or oral, not
herein contained or referenced shall be of any force or effect. This Agreement
shall not be changed unless in writing and signed by both the Executive and the
Board of Directors of the Company.
20. Executive's Acknowledgment. The Executive acknowledges (a) that he has
had the opportunity to consult with independent counsel of his own choice
concerning this Agreement, and (b) that he has read and understands the
Agreement, is fully aware of its legal effect, and has entered into it freely
based on his own judgment.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the date and year first written above.
"COMPANY"
GOLF TRUST OF AMERICA, INC.,
a Maryland corporation
By:_______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
"EXECUTIVE"
__________________________________
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
Residing at:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
13
EXHIBIT A
Board Minutes of April 25, 1997
14. Compensation Committee Matters
▇▇. ▇▇▇▇▇▇▇, Chairman of the Compensation Committee, led a discussion of
compensation matters.
a. Approval of Benefit Plans
After discussion, upon motion duly made, seconded and unanimously
carried, the following recitals and resolutions were adopted by the
Board:
WHEREAS, the employment agreements between the Company and W. ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (collectively the
"Executives") contemplate but do not require that the Company will
establish certain benefit plans for its Executives;
WHEREAS, this Board of Directors deems it advisable and in the best
interest of the Company and its shareholders to make certain benefit
plans available to the Executives; and
WHEREAS, this Board of Directors deems it appropriate to direct the
provision of certain employee benefits and the adoption of certain
benefit plans;
NOW, THEREFORE, BE IT RESOLVED, that the Company shall offer the
following benefits to each of the Executives:
1. Financial planning, tax compliance assistance and related
services (to be provided initially by the Company's accountant,
and thereafter by such provider as the President shall select);
2. Accidental death and dismemberment insurance plan;
3. Long-term disability insurance (at 50% of employee's salary);
4. Payment of, or reimbursement for, professional association dues,
professional licensing fees, continuing education tuition and
associated expenses.
RESOLVED FURTHER, that the Company shall provide the following
benefits to each of the Executives with the frequency or in the
amounts indicated:
1. Full health exam and medical testing available on the following
basis:
▇▇▇▇▇: Annually
Dick: Bi-Annually
▇▇▇▇▇▇: Bi-Annually
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2. Automobile allowances in the following amounts or, at the
Compensation Committee's option and on such terms and conditions
as the Compensation Committee shall specify, use of Company
automobiles:
▇▇▇▇▇: $1000/month
Dick: $800/month
▇▇▇▇▇▇: $600/month
RESOLVED FURTHER, that the enumeration of benefits in these
resolutions is non-exclusive and shall not be construed to limit the
availability of other benefits for which the Executives or any of them
are otherwise eligible.
RESOLVED FURTHER, that W. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ and such other officers as
he may from time to time designate be, and hereby are, authorized and
empowered on behalf of and by the Company and in its name to enter
into contracts with providers of the above benefit packages as each
shall deem advisable to accomplish the purposes of these resolutions.
RESOLVED FURTHER, that each of the officers of this Company be, and
hereby is, authorized and empowered on behalf of this Company and in
its name to execute any applications, certificates, agreements, or any
other instruments or documents or amendments or supplements thereto,
or to do and to cause to be done any and all other acts and things as
such officers may in their discretion deem necessary or appropriate to
carry out the purposes of each of the foregoing resolutions, the
execution and delivery of such documents and the taking of such
actions to be conclusive evidence of the necessity or appropriateness
thereof.
RESOLVED FURTHER, that any and all actions heretofore or hereafter
taken by any appropriate officer or authorized representative of this
Company within the terms or intent of any of the foregoing resolutions
be, and hereby are, ratified and confirmed as the act and deed of this
Company.
15