Exhibit 10.10
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "AGREEMENT"), made this day of
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, 2002, is entered into by GOTHAM GOLF PARTNERS, L.P., a Delaware limited
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partnership with its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "PARTNERSHIP"), GOTHAM GOLF CORP., a Delaware
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corporation with its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("GGC"), and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, residing at
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(the "EMPLOYEE").
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WHEREAS, the Partnership has employed the Employee under the terms of
an Employment Agreement dated January 1, 1999 (the "PRIOR AGREEMENT");
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WHEREAS, the Partnership and the Employee have agreed to enter into
this new Employment Agreement (the "AGREEMENT"), which shall replace and
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supersede the Prior Agreement in all respects, effective as of the Effective
Date (as defined in the Agreement and Plan of Merger and Contribution, dated as
of February 13, 2002, as amended (the "MERGER AGREEMENT"), by and among First
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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 GGC and the Partnership hereby agree to employ
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the Employee, and the Employee hereby accepts employment with GGC and 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
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(as defined below), unless sooner terminated in accordance with the provisions
of Section 4 (the "EMPLOYMENT PERIOD"). Each 12-month period ending on the
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anniversary of the Commencement Date is referred to herein as an "EMPLOYMENT
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YEAR." The "TERM OF THIS AGREEMENT" shall initially be the period beginning on
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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
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Executive 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.
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3.1 Salary. The Partnership shall pay the Employee, in monthly
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installments, an annual base salary (the "BASE SALARY") of Three Hundred
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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,
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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
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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
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establishes and makes available to all of its employees.
3.3 Reimbursement of Expenses. The Partnership shall reimburse the Employee
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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
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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.
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3.4 Stock Options. On the Commencement Date, GGC shall grant the Employee
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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
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CONTROL" shall mean a change in a majority of the members of
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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 Transaction Bonus. On the Commencement Date, GGC shall pay the Employee
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a bonus of $1,214,308.
3.6 Partnership Interests. Notwithstanding anything in any other agreement
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between the Partnership or GGC, on one hand, and the Employee, on the other
hand, to the contrary, except as otherwise set forth in this Section 3.6, the
Employee's Partnership Interests, as defined in the Third Amended and Restated
Agreement of Limited Partnership of Gotham Golf Partners, L.P. (the "GGP
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PARTNERSHIP AGREEMENT") and as set forth in Exhibit A to the GGP Partnership
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Agreement, (a) shall be subject to forfeiture upon any termination of the
Employee's employment hereunder and (b) may not be directly or indirectly sold,
assigned, encumbered, mortgaged, tendered, exchanged or disposed of in any other
manner that has the effect of changing the economic benefits or risks of
ownership (including by way of any derivative or hedging transaction, such as
short-selling or buying or selling options, that has the effect of changing the
economic benefits or risks of ownership) (each of (a) and (b) the
"RESTRICTIONS") until the Restrictions lapse in accordance with the terms of
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this Section 3.6. The Restrictions shall lapse with respect to one-fourth of the
Partnership Interests on each of the first four anniversaries of the
Commencement Date, so long as the Employee has remained continuously employed
hereunder through each of such vesting dates; provided, however, that the
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Restrictions shall immediately lapse upon the occurrence of a termination of the
Employee's employment (a) by the Employee for Good Reason, (b) by the
Partnership without Cause or (c) on account of the Employee's death or
disability.
4. Employment Termination. The employment of the Employee by the
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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"
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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
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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
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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
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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
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termination shall mean, without the prior written consent of the Employee, (a)
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,
(b) without limiting the generality of the foregoing, a failure to provide the
Executive the transaction bonus set forth in Section 3.5 within five (5)
business days after the Commencement Date, (c) 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 (d)
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.
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5.1 Termination for Cause or at Election of the Employee. In the event the
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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
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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
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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
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(the "FIRST OFFER RIGHT"). The principal terms of the First Offer Right are set
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forth on Schedule B.
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5.4 Survival. The provisions of this Section 5 shall survive the
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termination or expiration of this Agreement.
5.5 Severance Offset. The Employee hereby grants the Partnership and GGC a
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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 any amount payable pursuant to Section 5.3 (less any applicable
income and withholding taxes).
6. Non-Compete.
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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)
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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.
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7.1 Proprietary Information. The Employee shall not, without the prior
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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
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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
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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
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the fullest extent permitted by law, as stated more fully in Schedule C to this
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Agreement.
7.3 Survival. The provisions of this Section 7 shall survive the
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termination of this Agreement.
8. Litigation Fees and Expenses. Notwithstanding any provision of law or
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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
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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
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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
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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
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instrument executed by the Partnership, GGC and the Employee.
13. Governing Law. This Agreement shall be construed, interpreted and
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enforced in accordance with the laws of the State of Delaware.
14. Successors and Assigns. Subject to the terms of Section 4.6, this
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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
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of the Employee are personal and shall not be assigned by him.
15. Miscellaneous.
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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,"
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"INCLUDES" or "INCLUDING" is used in this Agreement, it shall be deemed to be
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followed by the words "WITHOUT LIMITATION."
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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:
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Name:
Title:
GOTHAM GOLF CORP.,
a Delaware corporation
By:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman, Board of Directors
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
SCHEDULE A
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
FIRST OFFER RIGHT
The Employee shall have a right of first offer (a "FIRST OFFER RIGHT") to
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acquire all of the Partnership's direct and indirect ownership interest in
Monroe Valley Golf Club ("MVGC"), located in Jonestown, Pennsylvania, on the
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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
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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
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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 C
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "AGREEMENT") is entered into as of the
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day of , 2002 ("AGREEMENT"), by and among GOTHAM GOLF CORP., a
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Delaware corporation (the "CORPORATION"), GOTHAM GOLF PARTNERS, L.P., a Delaware
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limited partnership (the "PARTNERSHIP"), and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("INDEMNITEE").
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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
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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
(ii) 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
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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
(iii) 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.
E. "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.
F. "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.
G. "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.
H. "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).
I. "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
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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
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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
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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.
C. 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.
D. 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
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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.
4. 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.
5. 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.
E. Determination of Good Faith.
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;
(b) The shareholders of the Corporation, which shall make such
determination by majority vote; or
(c) 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.
2. 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.
F. 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
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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
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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:
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman, Board of Directors
GOTHAM GOLF PARTNERS, L.P.,
a Delaware limited partnership
By:
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Name:
Title:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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
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, 2002 by and among Gotham Golf Corp. (the "CORPORATION"), Gotham
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Golf Partners, L.P (the "PARTNERSHIP") and Indemnitee, the undersigned is
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Indemnitee and is thereby entitled to advancement of expenses in connection with
[DESCRIPTION OF PROCEEDING] (the "PROCEEDING"). Terms used herein and not
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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.
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Signature
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Name
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Date