EXHIBIT 10.54
EMPLOYMENT AGREEMENT
AGREEMENT by and between National Golf Operating Partnership, L.P., a
Delaware limited partnership (the "Company") and ▇▇▇▇ ▇. Major (the "Executive")
dated as of the 20th day of June, 2002 (the "Effective Date").
The Board of Directors of National Golf Properties, Inc., a Maryland
corporation ("NGP") has determined that it is in the best interests of the
Company and NGP's shareholders to assure that the Company will have the
continued dedication of the Executive pending the reorganization of the Company.
Therefore, in order to accomplish these objectives, the Company has entered into
this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Employment Period. The Company hereby agrees to continue to employ the
Executive, and the Executive hereby agrees to continue to serve the Company,
subject to the terms and conditions of this Agreement, for the period commencing
on the Effective Date and ending on the third anniversary thereof (the
"Employment Period").
2. Terms of Employment. (a) Position and Duties. (i) (A) During the
Employment Period, the Executive shall serve as Executive Vice President of NGP,
reporting directly to the Chief Executive Officer of NGP, with such authority,
duties and responsibilities as are commensurate with such position and as may be
consistent with such position, and (B) the Executive's services shall be
performed primarily in the Los Angeles metropolitan area.
(ii) During the Employment Period, and excluding any periods of vacation
and sick leave to which the Executive is entitled, the Executive agrees to
devote substantially all of his attention and time during normal business hours
to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use the
Executive's reasonable best efforts to perform such responsibilities. During the
Employment Period, it shall not be a violation of this Agreement for the
Executive to (A) serve on corporate, civic or charitable boards or committees,
(B) deliver lectures, fulfill speaking engagements or teach at educational
institutions and (C) manage personal investments, so long as such activities do
not significantly interfere with the performance of the Executive's
responsibilities as an employee of the Company in accordance with this
Agreement.
(b) Compensation. (i) Signing Bonus. On the Effective Date, the Company
shall make a lump-sum cash payment to the Executive in the amount of $50,000.
(ii) Base Salary. During the Employment Period, the Executive shall
receive an annual base salary ("Annual Base Salary") of no less than $325,000,
payable in accordance with the Company's ordinary payroll practices, but not
less frequently than monthly. Any increase in Annual Base Salary shall not serve
to limit or reduce any other obligation to the Executive under this Agreement.
Annual Base Salary shall not be reduced after any increase and the term Annual
Base Salary as utilized in this Agreement shall refer to Annual Base Salary as
so increased. As used in this Agreement, the term "affiliated companies" shall
include any company controlled by, controlling or under common control with the
Company.
(iii) Annual Bonus. During the Employment Period, unless otherwise
determined by the Compensation Committee of the Board of Directors of NGP (the
"Board"), the Executive shall not be entitled to receive an annual bonus under
any annual bonus plan or program of the Company.
(iv) Retention Payment. Subject to the consummation (the "Closing
Date") of the first to occur of either (A) the transaction contemplated by the
Agreement and Plan of Merger and Reorganization by and among the Company, NGP,
American Golf Corporation, Golf Enterprises, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇ and Dallas P.
Price, The ▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust, The Dallas P. Price Trust, the AGC Contributors
and the Transferred Entity Contributors, dated as of March 29, 2002, as it may
be amended from time to time, or (B) the sale of all or a substantial portion of
the outstanding equity securities of NGP in one transaction or series of related
transactions (a "Transaction"), the Executive shall be eligible to receive a
payment in the aggregate amount of $400,000 (the "Retention Payment"). The first
installment of the Retention Payment in the amount of $150,000 shall vest and
become payable to the Executive on the Closing Date, and the second installment
of the Retention Payment in the amount of $250,000 shall vest and become payable
to the Executive on the first anniversary of the Closing Date, in each case,
subject to the Executive's employment with the Company as of such payment date;
provided, however, that, in the event the Executive's employment is terminated
on or after the Closing Date by the Company (or any successor thereto or
acquirer thereof) other than for Cause, by the Executive for Good Reason or due
to the Executive's death or Disability, the Retention Payment shall vest and be
immediately payable in full.
(v) Equity Rights. Upon the Closing Date, all outstanding and unvested
options to acquire NGP common stock and all restricted shares of NGP
common stock shall immediately and fully vest, become free of restrictions
and/or any performance goals shall be deemed achieved in full, notwithstanding
anything to the contrary contained in NGP plan or award agreement under
which such options and restricted share awards were granted.
(vi) Other Employee Benefit Plans. During the Employment Period, except
as otherwise expressly provided herein, the Executive shall be entitled to
participate in all employee benefit, welfare, fringe benefit and other plans,
practices, policies and programs available to similarly situated executives of
the Company.
(vii) Expenses. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
the Executive in accordance with the Company's policies.
(viii) Vacation. During the Employment Period, the Executive shall be
entitled to paid vacation in accordance with the plans, policies, programs and
practices of the Company and its affiliated companies as in effect with respect
to similarly situated executives of the Company.
3. Termination of Employment. (a) Death or Disability. The Executive's
employment shall terminate automatically upon the Executive's death during the
Employment Period. If the Company determines in good faith that the Disability
of the Executive has oc-
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curred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 10(b) of this Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive's legal representative.
(b) Cause. The Company may terminate the Executive's employment during the
Employment Period either with or without Cause. For purposes of this Agreement,
"Cause" shall mean:
(i) the continued failure of the Executive to perform substantially the
Executive's duties with the Company (other than any such failure resulting from
incapacity due to physical or mental illness), after a written demand for
substantial performance is delivered to the Executive by the Board or the Chief
Executive Officer of NGP which specifically identifies the manner in which the
Board or Chief Executive Officer believes that the Executive has not
substantially performed the Executive's duties;
(ii) the willful engaging by the Executive in illegal conduct or gross
misconduct that is materially and demonstrably injurious to the Company; or
(iii) conviction of a felony or guilty or nolo contendere plea by the
Executive with respect thereto.
For purposes of this provision, no act or failure to act, on the part of
the Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief Executive Officer of
NGP or based upon the advice of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by the Executive in good faith and
in the best interests of the Company. The cessation of employment of the
Executive shall not be deemed to be for Cause unless and until there shall have
been delivered to the Executive a copy of a resolution duly adopted by the
affirmative vote of not less than two-thirds of the entire membership of the
Board at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to the Executive and the Executive is given an
opportunity, together with counsel, to be heard before the Board), finding that,
in the good faith opinion of the Board, the Executive is guilty of the conduct
described in subparagraph (i) or (ii) above, and specifying the particulars
thereof in detail.
(c) Good Reason. The Executive's employment may be terminated by the
Executive either with or without Good Reason. For purposes of this Agreement,
"Good Reason" shall mean a material breach by the Company of a material
obligation of the Company under this
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Agreement, which shall include the following events, in the absence of a written
consent of the Executive:
(i) the assignment to the Executive of any duties inconsistent in a
material respect with the Executive's position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities as
contemplated by Section 2(a) of this Agreement, or any other action by the
Company which results in a material diminution in such position, authority,
duties or responsibilities;
(ii) any failure by the Company to comply with any of the provisions of
Section 2(b) of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive;
(iii) the Company's requiring the Executive to be based at any office
or location more than 35 miles from that provided in Section 2(a)(i)(B) hereof;
(iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
(v) any failure by the Company to comply with and satisfy Section 9(c)
of this Agreement.
(d) Notice of Termination. Any termination by the Company for Cause, or by
the Executive for Good Reason, shall be communicated by Notice of Termination to
the other party hereto given in accordance with Section 10(b) of this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, 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 and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than thirty days after the
giving of such notice). The failure by the Executive or the Company to set forth
in the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of the Executive or
the Company, respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the Executive's
employment is terminated by the Company for Cause, or by the Executive with or
without Good Reason, the date of receipt of the Notice of Termination or any
later date specified therein (and agreed to by the Company, in the case of a
termination by the Executive) within 30 days of such notice, as the case may be,
(ii) if the Executive's employment is terminated by the Company other than for
Cause or Disability, the Date of Termination shall be the date on which the
Company notifies the Executive of such termination and (iii) if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be.
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4. Obligations of the Company upon Termination. (a) Good Reason; Other Than
for Cause, Death or Disability. If, during the Employment Period, the Company
shall terminate the Executive's employment other than for Cause or Disability or
the Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in cash within
30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date
of Termination, (2) any accrued and unused vacation pay, and (3) any
deferred compensation, in each case, to the extent not theretofore paid
(the sum of the amounts described in clauses (1), (2) and (3), shall be
hereinafter referred to as the "Accrued Obligations"); and
B. the amount equal to the product of (1) one and one-half (1.5) and
(2) the Executive's Annual Base Salary; and
C. the Retention Payment, provided that the Closing Date of a
Transaction has occurred on or prior to the Date of Termination, to the
extent not theretofore paid and; and
(ii) for the eighteen (18) month period following the Date of
Termination, the Company shall continue to provide medical and dental benefits
to the Executive, his spouse and eligible dependents on the same basis such
benefits were provided to the Executive immediately prior to the Date of
Termination (collectively "Medical Benefits"); and
(iii) to the extent not theretofore paid or provided, the Company shall
timely pay or provide to the Executive any other amounts or benefits required to
be paid or provided or which the Executive is eligible to receive under any
plan, program, policy or practice or contract or agreement of the Company and
its affiliated companies through the Date of Termination (such other amounts and
benefits shall be hereinafter referred to as the "Other Benefits").
(b) Death. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits. In addition, and provided that the Closing Date
of a Transaction has occurred on or prior to the Date of Termination, the
Retention Payment shall vest and become payable in full, to the extent not
theretofore paid. Accrued Obligations and the Retention Payment shall be paid to
the Executive's estate or beneficiary, as applicable, in a lump sum in cash
within 30 days of the Date of Termination. With respect to the provision of
Other Benefits, the term Other Benefits as utilized in this Section 4(b) shall
include death benefits as in effect on the date of the Executive's death with
respect to similarly situated executive of the Company and their beneficiaries.
(c) Disability. If the Executive's employment is terminated by reason of
the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued Obligations and the timely payment or provision of Other Benefits. In
addition, provided that the Closing Date of a
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Transaction has occurred on or prior to the Disability Effective Date, the
Retention Payment shall vest and become payable in full, to the extent
theretofore unpaid. Accrued Obligations and the Retention Payment shall be paid
to the Executive in a lump sum in cash within 30 days of the Date of
Termination. With respect to the provision of Other Benefits, the term Other
Benefits as utilized in this Section 4(c) shall include, and the Executive shall
be entitled after the Disability Effective Date to receive, disability and other
benefits as in effect at any time thereafter with respect to similarly situated
executives of the Company and the continued provision of Medical Benefits to the
Executive, his spouse and eligible dependents.
(d) Cause; Other than for Good Reason. If the Executive's employment shall
be terminated for Cause or the Executive terminates his employment without Good
Reason, during the Employment Period, this Agreement shall terminate without
further obligations to the Executive other than the obligation to pay to the
Executive (i) his Annual Base Salary through the Date of Termination, (ii)
accrued and unused vacation pay and (iii) Other Benefits, in each case to the
extent theretofore unpaid.
5. Non-Exclusivity of Rights. Except as specifically provided, nothing in
this Agreement shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided by the Company
or any of its affiliated companies and for which the Executive may qualify, nor,
subject to Section 10(f), shall anything herein limit or otherwise affect such
rights as the Executive may have under any contract or agreement with the
Company or any of its affiliated companies. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive under any plan, policy,
practice or program of or any contract or agreement with the Company or any of
its affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
6. Full Settlement. The Company's obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action which the Company may have against the Executive or
others. In no event shall the Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement and, such amounts shall
not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay as incurred, to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur as a result of
any contest (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code").
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7. Certain Additional Payments by the Company.
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(a) Anything in this Agreement to the contrary notwithstanding and except
as set forth below, in the event it shall be determined that any payment or
distribution by the Company or any of its affiliated companies to or for the
benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
7) (a "Payment") would be subject to the excise tax imposed by Section 4999 of
the Code or any interest or penalties are incurred by the Executive with respect
to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
the Executive shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. Notwithstanding the foregoing provisions of this
Section 7(a), if it shall be determined that the Executive is entitled to a
Gross-Up Payment, but that the Payments do not exceed 110% of the greatest
amount (the "Reduced Amount") that could be paid to the Executive such that the
receipt of Payments would not give rise to any Excise Tax, then no Gross-Up
Payment shall be made to the Executive and the Payments, in the aggregate, shall
be reduced to the Reduced Amount.
(b) Subject to the provisions of Section 7(c), all determinations required
to be made under this Section 7, including whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by
PricewaterhouseCoopers LLP or such other certified public accounting firm
reasonably acceptable to the Company as may be designated by the Executive (the
"Accounting Firm") which shall provide detailed supporting calculations both to
the Company and the Executive within 15 business days of the receipt of notice
from the Executive that there has been a Payment, or such earlier time as is
requested by the Company. All fees and expenses of the Accounting Firm shall be
borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Section 7, shall be paid by the Company to the Executive within five days
of the receipt of the Accounting Firm's determination. Any determination by the
Accounting Firm shall be binding upon the Company and the Executive. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 7(c) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than 10 business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid.
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The Executive shall not pay such claim prior to the expiration of the 30-day
period following the date on which it gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to such
claim is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order effectively to
contest such claim, and
(iv) permit the Company to participate in any proceedings relating to
such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 7(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim
in any permissible manner, and the Executive agrees to prosecute such contest to
a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and ▇▇▇ for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and, further, provided, that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the Executive with respect
to which such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the Executive shall be entitled to settle or contest, as the case
may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 7(c), the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall (subject to the Company's
complying with the requirements of
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Section 7(c)) promptly pay to the Company the amount of such refund (together
with any interest paid or credited thereon after taxes applicable thereto). If,
after the receipt by the Executive of an amount advanced by the Company pursuant
to Section 7(c), a determination is made that the Executive shall not be
entitled to any refund with respect to such claim and the Company does not
notify the Executive in writing of its intent to contest such denial of refund
prior to the expiration of 30 days after such determination, then such advance
shall be forgiven and shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
8. Restrictive Covenants. (a) Confidentiality. The Executive shall hold in
a fiduciary capacity for the benefit of the Company all secret or confidential
information, knowledge or data relating to the Company or any of its affiliated
companies, and their respective businesses, which shall have been obtained by
the Executive during the Executive's employment by the Company or any of its
affiliated companies and which shall not be or become public knowledge (other
than by acts by the Executive or representatives of the Executive in violation
of this Agreement). After termination of the Executive's employment with the
Company, the Executive shall not, without the prior written consent of the
Company or as may otherwise be required by law or legal process, communicate or
divulge any such information, knowledge or data to anyone other than the Company
and those designated by it.
(b) Non-Solicitation of Clients. While employed by the Company and for a
period of one (1) year after the Executive's termination of employment, the
Executive shall not, directly or indirectly, either as principal, agent,
independent contractor, consultant, director, officer, employee, employer,
advisor (whether paid or unpaid), stockholder, partner, member or in any other
individual or representative capacity whatsoever, either for the Executive's own
benefit or for the benefit of any other person or entity, solicit, divert or
take away as a customer or client any person who or which is a customer or
client of the Company, is then being solicited as such a customer or client, or
was such a customer or client at any time during the one-year period preceding
the Executive's termination of employment.
(c) Non-Solicitation of Employees or Others. While employed by the Company
and for a period of one (1) year after the Executive's termination of
employment, the Executive shall not, directly or indirectly, solicit for
employment (other than on behalf of the Company) any employee of the Company or
any person who was such an employee at any time during the one-year period
preceding the Executive's termination of employment.
(d) Enforcement. The Executive acknowledges that the restrictions set forth
in this Section 8 are reasonable and necessary to protect the Company's
legitimate business interests and do not unreasonably restrict the Executive's
ability to earn a livelihood or impose any undue hardships. The Executive also
hereby acknowledges that a breach of this Section 8 may cause irreparable damage
to the Company, for which there may be no adequate remedy at law. In the event
of a breach or threatened breach of this Section 8, the Executive agrees that
the Company shall be entitled to injunctive relief in a court of appropriate
jurisdiction to remedy any such breach or threatened breach, the Executive
acknowledges that damages would be inadequate and insufficient. If a court of
competent jurisdiction determines that any covenant in this Section 8 is invalid
or against public policy, the remaining provisions of this Agreement shall not
be affected thereby and shall remain in full force and effect. In no event shall
an asserted ▇▇▇▇▇-
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tion of the provisions of this Section 8 constitute a basis for deferring or
withholding any amounts otherwise payable to the Executive under this Agreement.
Any termination of the Executive's employment or of this Agreement shall have no
effect on the continuing operation of this Section 8.
9. Successors. (a) This Agreement is personal to the Executive and without
the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
(c) The Company or NGP will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
10. Miscellaneous. (a) This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing and
shall be given by hand delivery to the other party or by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: At the most recent address on
file in the Company's records.
If to the Company: National Golf Operating Partnership, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
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(d) The Company may withhold from any amounts payable under this Agreement
such Federal, state, local or foreign taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 3(c)(i)-(v) of this Agreement, shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement.
(f) From and after the Effective Date, this Agreement shall supersede any
other employment, severance or change of control agreement between the Company
or any of its subsidiaries or affiliates, on the one hand, and the Executive, on
the other hand, with respect to the subject matter hereof, including, without
limitation, the Employment Agreement between the Company and the Executive,
dated January 15, 1997, as amended June 15, 2001.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and
the Board has caused these presents to be executed, all as of the day and year
first above written.
/s/ ▇▇▇▇ ▇. Major
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▇▇▇▇ ▇. Major
NATIONAL GOLF OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: NATIONAL GOLF PROPERTIES, INC.,
a Maryland corporation,
its General Partner
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Interim Chief Executive Officer
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