Exhibit 10.6
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made and entered into as of the 25th day of August,
2000, by and between XXXXXX'X OPERATING COMPANY, INC., (hereinafter referred to
as the "Company") and XXXX XXXXXX, (hereinafter referred to as the "Executive").
I. RECITALS
A. The Company desires to employ (or continue to employ) Executive, and
Executive desires to serve as an employee of the Company, on the terms and
conditions set forth in this Agreement.
B. Executive understands that he will be employed in a sensitive
position with access to, and requiring knowledge of confidential and
commercially valuable information of the Company, including but not limited to
the current and future marketing plans for the Company and all of its wholly
owned subsidiaries and affiliates, the unauthorized use or disclosure of which,
during and following his separation of employment, could cause the Company and
its subsidiaries serious and irreparable injury.
C. Executive also acknowledges that, by virtue of his position with the
Company, Executive will have dealings with customers who have close and ongoing
relationships with the Company, and that Executive's competition for or
solicitation of such customers following Executive's separation of employment
would cause the Company serious and irreparable injury.
D. Executive acknowledges that the Company would not have entered into
this Agreement without Executive's express understanding of and agreement with
the confidentiality, non-competition and non-solicitation provisions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
1. Employment of Executive. The Company agrees to employ Executive, and
Executive accepts such employment and agrees to
serve as an employee of the Company on the terms and conditions set forth
herein.
2. Term. Subject to Section 6 hereof, the term of Executive's
employment hereunder ("Employment Term") shall commence on the date set forth
above ("the Effective Date") and shall continue for a period of four years;
provided that this Agreement will automatically renew for successive one-year
periods thereafter unless (1) otherwise terminated under Section 6, or (2)
either party notifies the other party, in writing, at least thirty (30) days
prior to the otherwise scheduled expiration of the Employment Term that such
Term of Employment shall not so renew.
3. Position and Duties. During the Employment Term, Executive shall
serve the Company in the capacity of Senior Vice President of Marketing
performing such services as may be assigned or required by the Executive's
supervisor or other higher executives. Executive shall devote his best
efforts and his full business time and attention to the performance of the
services customarily incident to such office or position, and such other
services and duties and responsibilities as may be reasonably requested by
the Company, which may include services for one or more subsidiaries of the
Company. Said services shall be performed exclusively for the Company and its
subsidiaries, except for (1) service on civic or charitable boards or
committees, approved by the Company, involving no conflict of interest with
the interests of the Company and not interfering with the regular performance
of his duties hereunder, and (2) sick leave, leave of absences, and periods
of paid time off (PTO), all in accordance with the Company's policies.
4. Place of Performance. The services to be provided by Executive
hereunder shall be performed at the Company's subsidiary in Las Vegas,
Nevada, or at such other location as the Company, in its sole discretion, may
designate. Executive understands and agrees that an essential function of the
services provided by Executive requires that he will be able to travel to the
Company's subsidiaries and other locations and may be required to relocate.
5. Compensation and Related Matters. During the Term, Executive
shall be entitled to receive the following compensation and benefits:
(a) Base Salary. Executive shall receive a Base Salary ("Base
Salary") at an annual rate of $275,000. Executive's Base Salary shall
be subject to review on April 1st of each year in accordance with
Company's regular administrative practices of salary review applicable
for executives of the Company. Salary increases shall be in the
discretion of the Company. Base Salary shall be paid in substantially
equal periodic installments, but not less frequently than monthly, in
accordance with the Company's customary salary payment policies
applicable to employees of the Company.
(b) Performance Bonus. Executive shall be eligible for
participation in an annual bonus plan, subject to the terms and
conditions of the bonus plan, as may be amended from time to time, for
Executive's salary and grade level. The amount of the bonus, if any,
shall be in the discretion of the Company. To be eligible for a bonus
for a calendar year, Executive must be actively employed (actually
performing work) on March 15th of the following year and/or the date
set forth in Company's Bonus Plan subject to the terms of the bonus
plan.
(c) Stock Options and Restricted Stock. Executive shall be
eligible for participation in the Company's Stock Option and Restricted
Stock Plan pursuant to the terms of the Stock Option and Restricted
Stock Plans, as modified from time to time. The Company's management
will recommend to the Company's Human Resources Committee (HRC) that
Executive be granted options and restricted stock when such awards are
normally made to employees in general. Company management will
recommend that HRC determine the number and frequency of options and
restricted stock awards to be granted Executive. Generally the number
of options and restricted stock will be based on the same criteria as
are generally used for other employees at Executive's grade level,
subject to Stock Options and Restricted Stock Plans, as may be modified
from time to time. However, awards for employees in a particular level
can vary in amount depending on subject factors and there is no
guarantee of uniform treatment. HRC will set the exercise price of the
options. HRC has the sole right to determine the amount and mix of
options and restricted stock, if any, to be granted to Executive and
the grants are not subject to change. All awards are subject to the
terms of the Company's plans, and their administrative regulations as
these may be amended
from time to time, and the award certificates. Executive understands
that there is no guarantee of the projected value of the grants, and
grants are subject to approval each year by the HRC. Executive also
understands that the ability to exercise stock options and receive
vested restricted stock are also subject to the terms of the
Company's plans.
(d) TARSAP II Grant. Executive will also be eligible to
receive up to 50,000 shares of TARSAP II, as further consideration for
Executive's covenants of confidentiality, non-competition and
non-solicitations as set forth in Sections 8 and 9 of this Agreement.
Executive's eligibility for such shares and the time and manner of
their vesting will be according to the Plan's rules and procedures,
which are subject to change, modification or termination.
(e) Other Benefits - During Term of Employment. Executive
shall be entitled to participate in any life, health, and long-term
disability insurance plans, retirement programs, deferred compensation,
financial counseling, other incentive compensation programs, PTO, and
other fringe benefits made available to other executive employees of
the Company in similar grade levels to that of the Executive at his
location, subject to the benefits provisions and eligibility rules
thereof. The Company has the exclusive right to modify, add and
eliminate any of these benefits.
(f) Certain Health Insurance Benefits. If (i) the Executive
reaches the age of 50 and, when added to his number of years of
continuous service with the Company, the sum of his age and years of
service equals or exceeds 65, and at anytime after the occurrence of
such events the Executive's employment is terminated pursuant to
Section 6(d) or 6(e) or a non-renewal of this Agreement; or (ii) the
Executive reaches the age of 55 and has attained 10 years of continuous
service with the Company, and at any time after the occurrence of both
such events the Executive is separated from employment for any reason
other than for "cause" as described in Section 6(a), the Executive and
his then eligible dependents shall be entitled to participate in the
Company's group health insurance plan, as amended from time to time by
the Company, as of the Executive's Separation Date or the end of the
Salary Continuation Period (as defined in Section 7(c)), as applicable
for the remainder of the Executive's life (Life Coverage Period).
During the Life Coverage period, the Executive shall pay 20% of the
current premium (revised annually) on an after-tax basis each quarter,
and the Company shall pay 80% of said premium on an after-tax basis
each quarter, which contribution shall be imputed income to the
Executive. As soon after the Separation Date as the Executive becomes
eligible for Medicare coverage, the Company's group heal insurance plan
shall become secondary to Medicare. If Executive breaches the
provisions of Section 8 and/or 9 during the Life Coverage Period, the
entitlement of Executive and his then dependents to participate in the
Company's group health plan shall terminate automatically without
further action or notice by either party, subject to applicable COBRA
rights, which shall commence on the Separation Date.
(g) EDCP Retirement Rate. If Executive reaches the age of 50
and, when added to his number of years of service equals or exceeds 65,
and at any time after the occurrence of both events, the Executive's
employment is terminated pursuant to Section 6(d) or 6(e), the
Executive shall be entitled to receive his distributions from EDCP at
the retirement rate. For EDCP retirement rate purposes, the Executive
will receive service credit for the Salary Continuation period, if
applicable.
(h) Change in Control. If a Change in Control, as defined in
the Executive's Severance Agreement, occurs during the Executive's
Active Employment, and if the Severance Agreement is in force when the
Change in Control occurs, then the Severance Agreement supercedes and
replaces this Agreement, except that notwithstanding anything to the
contrary in the Severance Agreement, the provisions of Section 8 and 9
of this Agreement will remain in full force and effect. If, prior to
the change in Control (as defined above), the Executive's Active
Employment has been terminated for any reason by either party or this
Agreement is not renewed by the Company, then the Executive's Severance
Agreement automatically terminates.
6. Separation of Employment.
(a) Death. The death of Executive shall automatically
terminate the Company's obligations hereunder, except as set forth in
7(a) below.
(b) Total Disability. If Executive is disabled so that in the
Company's opinion he would qualify for disability under the Company's
Long Term Disability Plan if he applied for it, the Company shall be
entitled to separate Executive's employment with the Executive
reserving his rights to apply for disability benefits based on becoming
disabled during active employment. This separation will terminate the
Employer's obligations to Executive, except as set forth in Section
7(b). All the provisions and obligations of Executive under Sections 8
and 9 will survive his Separation for Disability.
(c) Separation For Cause. At any time during the term of this
Agreement, the Company may separate Executive's employment for cause,
in which event Executive's employment will immediately terminate. For
the purpose of this Agreement, the Company shall have "Cause" to
separate Executive's employment for any of the following reasons: (1)
dishonesty or fraud, (2) disclosure of confidential information
(Section 8) regarding the Company or other material breach of Section
8, (3) aiding a competitor (as defined in Section 8) of the Company or
other material breach of Section 8, (4) the use by Executive of
controlled substances (not legally prescribed by a physician) or the
use of alcohol that interferes, in the sole discretion of the Company,
with the performance of the Executive duties, or (5) willful
misconduct, insubordination, acts of moral turpitude or gross
negligence in the performance of his duties hereunder which are
injurious to the Company or any of it subsidiaries as determined in
good faith by management. Separation for Cause shall be approved by the
Chief Executive Officer or his designee but only after reasonable
notice to Executive and a reasonable opportunity to explain the
conduct. The failure of the Executive to meet financial projections,
budgets or target performance objectives alone shall not be deemed
willful misconduct or gross negligence for the purposes of this
Agreement. All the provisions and obligations of Executive under
Sections 8 and 9 will survive his Separation for Cause.
(d) Separation Without Cause. Notwithstanding anything to the
contrary contained in this Agreement, the Company may in its sole
discretion, at any time, separate Executive from employment with the
Company Without Cause. All the provisions and obligations of Executive
under Sections 8 and 9 will survive Separation Without Cause.
(e) Separation by Executive Without Good Reason. Executive may
terminate his employment at any time Without Good Reason upon 30 days
prior written notice. All the provisions and obligations of Executive
under Sections 8 and 9 will survive his Separation Without Good Reason.
(f) Notice of Separation. Any purported separation of
Executive's employment hereunder by the Company or Executive (other
than separation by reason of the death of Executive) shall be effective
when communicated to the other party by a Notice of Separation. For the
purposes of this Agreement, a "Notice of Separation" shall be a written
notice indicating the specific separation provision in this Agreement
relied upon and the Separation Date. If Executive vacates or abandons
his job and does not give Notice of Separation, the Separation Date
will be the last day worked or such other date as the Company may
select.
(g) Separation For Any Reason. Separation of Executive's
employment for any reason shall not constitute a waiver of Executive's
obligations under Sections 8 and 9 hereof.
7. Payments Upon Separation.
(a) Payments Upon Death. If Executive's employment hereunder
is separated by reason of Death during his Active Employment, the
Company shall pay to Executive's estate his Base Salary and accrued PTO
through the Separation Date at the rate in effect on the Separation
Date. His estate and beneficiary(ies) will receive the benefits to
which they are entitled under the terms of the applicable benefit plans
and programs by reason of a participant's death during active
employment. If Executive dies during the Salary Continuation Period,
the remaining Salary Continuation will be paid in a lump sum to the
Executive's estate and his estate and/or beneficiary(ies) will receive
the benefits applicable to an employee who dies during salary
continuation.
(b) Payments Upon Total Disability. If Executive qualifies for
disability under the Company's Long Term Disability Plan, then the
terms and provisions of the Company benefit plans and the programs
(including EDCP, if he is a participant at the time of acceptance of
his disability, and the Company's Stock Option and Restricted
Stock Plans) that are applicable in the event of such disability of an
employee shall apply in lieu of the salary and benefits under this
Agreement. If the Executive becomes disabled during the Salary
Continuation Period, he will not be eligible for benefits under the
Company's Long Term Disability Plan and will be entitled only to the
salary and benefits described in Paragraph 7(c) below for the periods
set forth in those respective paragraphs.
(c) Payments Upon Separation for Cause or By Executive Without
Good Reason. If Executive's employment hereunder is separated by the
Company for Cause pursuant to Section 6(c) or by Executive Without Good
Reason pursuant to Section 6(e), then the Company shall pay Executive
his Base Salary and accrued PTO through the Separation Date at the rate
in effect at the time notice of separation is given and the Company
shall have no further obligation to the Executive other than COBRA
rights, if any, and other normal rights offered to terminated employees
under benefit programs, if any. However, the covenants contained in
Sections 8 and 9 and all the Executive's obligations shall survive the
separation of Executive's employment with the Company. In addition, if
the separation is by the Executive without Good Cause, the special
non-compete clause in Executive's Stock Option Plan will also survive.
(d) Payments Upon Separation Without Cause. If Executive's
employment is separated by the Company Without Cause pursuant to
Section 6(d), then the Company shall, as severance pay, provide to
Executive the payment and benefits set forth in this section; provided,
however, that Executive's entitlement to any such payments or benefits
shall be expressly subject to, conditional upon, in consideration of
the Company receiving a release prepared by the Company and executed by
Executive, waiving and releasing the Company, its parent company, their
subsidiaries and affiliates, and their officers, directors, agents,
benefit plan trustees and employees from any and all claims, whether
known or unknown, and regardless of type, cause or nature, including
but not limited to claims arising under all salary, bonus, stock,
vacation (PTO), insurance and other benefit plans and all state and
federal anti-discrimination, civil rights and human rights laws,
ordinances and statutes, including Title VII of the Civil Rights Act of
1964 and 1991, the Age Discrimination in Employment Act, as amended by
the Older Worker's Benefit Protection Act of 1990,
and the American's with Disabilities Act covering Executive's
employment with the Company, its subsidiaries and affiliates, and
the cessation of that employment. Pursuant to this Section 7(d),
Executive will receive the following benefits:
(i) Company shall pay Executive 52 weeks of Salary
Continuation, plus PTO earned and unused through the
Separation Date (PTO paid in a lump sum), plus all normal,
applicable benefits (E.G., health, dental and life insurance,
savings and retirement plan participation but not eligibility
for the Company's Long Term Disability Plan and no further PTO
will accrue) with the Company beginning the day following the
Separation Date (the "Salary Continuation Period"). Salary
Continuation will be paid on a bi-weekly basis. If Executive
dies during the Salary Continuation Period, the Company,
within ten (10) days of becoming aware of such event, will
pay, by check, to his estate the lump sum amount equal to the
salary he would have earned during the remainder of the Salary
Continuation Period (The date of the check for the lump sum is
herein referred to as the "Termination Date"). However, if
during the Salary Continuation Period, the Executive violates
Paragraphs 8 and 9 hereof, all salary continuation and
benefits (except COBRA rights) will cease and Executive will
immediately be obligated to return all salary continuation
payments previously received during the Salary Continuation
Period. The Company will also have the right to enforce those
covenants as set forth in Sections 8 and 9. During the Salary
Continuation Period, Executive shall remain an employee of the
Company and, solely for stock option exerciseability, group
health and life insurance and EDCP or DCP retirement purposes,
shall receive service credit during that period. Executive
will be responsible for the employee portion of the cost of
such insurance during the Salary Continuation Period similar
to other employees. All Salary Continuation will end if
Executive obtains a position within the Company or one of its
subsidiaries.
(ii) Executive will be entitled, at the Company's
expense, to Executive outplacement services being provided at
that time to terminated executives at his grade level
(iii) The Company may, as a further condition to the
separation payment, require that Executive provide transition
consulting services to the Company regarding knowledge of
matters on which he worked, on a reasonable basis and at times
mutually convenient to the Company and Executive during the
Salary Continuation Period.
(iv) Regarding salary, benefits and related matters
(Benefits), the following schedule summarizes Executive's
participation in each of the applicable salary and benefit
plans and the respective dates on which such participation, or
eligibility to participate, terminates:
Benefit Date Benefits Terminate
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Base Salary See subparagraph 7(d)(i).
Use of credit cards Separation Date.
Bonus Payment Eligible for prior plan
year bonus if separated in
the next year prior to
payment. Not eligible for
bonus for current year.
Insurance, including End of Salary Continuation
Health Period or Termination Date,
Dental whichever occurs first. The
18 month COBRA rights period
Vision for health insurance will
Life commence on the Separation
Date. If Executive obtains
employment and if the
employer provides
insurance, whether at the
Executive's cost or
partial cost, Executive
must enroll in such
coverage, and the
Company's group health
insurance plan shall
become secondary to any
primary health coverage
made available to the
Executive by that business.
Eligibility for New Restricted Separation Date
Stock or New Stock Options
Retaining existing Restricted See Paragraph 7(d)(v)
Stock for vesting and other
rights
Retaining existing stock See Paragraph 7(d)(v)
options for vesting and other
rights
Use of financial counseling End of Salary Continuation
Period or Termination
Date. Executive will only
be eligible for the
financial counseling for
any amount remaining in
the calendar year in which
he is separated.
Savings and Retirement Plan Active contribution will end
December 31st of the year
of Separation Date, death,
or the end of the Salary
Continuation Period,
whichever comes first.
Separation of employment
for distribution purposes
will be end of Salary
Continuation Period or
death.
TARSAP II Executive will be eligible,
at sole discretion of CEO
and also subject to HRC
approval if CEO recommends
any vesting, for all or
part of the next vesting
(based on achieving
performance targets) after
Separation Date. Executive
will not be eligible for
any other payments (other
than any previous TARSAP
II deferral) or vestings
and CEO has no obligation
to recommend any vesting.
TARSAP II shares that are
not so vested will be
forfeited. If a Change in
Control occurs during
the Salary Continuation
Period, participant would
only be entitled to the
next vesting installment
not otherwise earned
(I.E., all TARSAP II
shares will not
automatically accelerate).
Executive Deferred Active contribution will end
Compensation Plan (EDCP)
December 31st of the year
of Separation Date, death,
or the end of the Salary
Continuation Period,
whichever comes first.
Separation of employment
for distribution purposes
will be end of Salary
Continuation Period or
death.
(v) Regarding Executive's unvested shares of
restricted stock, except for TARSAP II, if any, and unvested
stock options, they will be automatically forfeited and
returned to Xxxxxx'x Entertainment, Inc. (HET) as of the
Separation Date, and Executive shall have no further rights
thereto. All vested stock options can be exercised during the
Salary Continuation Period and may be exercisable thereafter
for a limited period if Executive meets the required age and
service requirements under the plan.
(vi) With respect to the EDCP, if Executive is a
participant, Executive understands and agrees that the date
for the purposes of determining the commencement of
Executive's distribution entitlement with respect to his
deferrals into the EDCP will be the earlier of the date on
which Salary Continuation Period ends or death. The payment of
such benefits will be made in accordance with the plan and as
elected by Executive in the EDCP participation agreement(s) in
effect at the Separation Date between Executive and Xxxxxx'x
Entertainment, Inc. Effective the first day of the Salary
Continuation
Period, Executive understands and agrees that the death
provision of the EDCP which provides a lump sum payment of
three times deferrals upon death will no longer be
applicable. All other death benefit provisions remain in
effect. Balances, if any, in the EDCP will continue to be
protected by, and subject to the terms and conditions
(including those relating to amendment and termination) of
the Escrow Agreement, dated February 1990, as amended,
among (HET), the Company and Bank of America.
(vii) With respect to the DCP, if Executive is a
participant, Executive understands and agrees that the date
for purposes of determining the commencement of Executive's
benefit distribution with respect to his deferrals into the
DCP will be the earlier of the date on which the Salary
Continuation Period ends or death. The payment of such
benefits will be made in accordance with the plan as elected
by Executive in his participation agreements in effect on the
Separation Date between Executive and HET.
(viii) Notwithstanding anything to the contrary in
this Section 7(d), the Company's obligations under this
Section 7(d) shall cease (except for obligations pursuant to
the terms of any benefit plan) if Executive breaches in any
material respect any of the covenants set forth in Section 8
of this Agreement or breaches, other than an inadvertent
non-material breach, any of the covenants of Executive set
forth in Section 9 of this Agreement and such breach is not
explained to the Company's satisfaction within ten days from
the date written notice thereof is given to Executive by the
Company. Executive understands that the Company has a right to
seek enforcement of Executive's obligations under Sections 8
and 9.
8. Confidentiality.
(a) Executive's position with the Company will or has resulted
in his exposure and access to confidential and proprietary information
which he did not have access to prior to holding the position, which
information is of great value to the Company and the disclosure of
which by him, directly or indirectly, would be irreparably injurious
and detrimental to the Company. During his term of employment
and without limitation thereafter, Executive agrees to use his best
efforts and to observe the utmost diligence to guard and protect all
confidential or proprietary information relating to the Company from
disclosure to third parties. Executive shall not at any time during
and after his Separation Date, make available, either directly or
indirectly, to any competitor or potential competitor of the Company
or any of its subsidiaries, or their affiliates or divulge,
disclose, communicate to any firm corporation or other business
entity in any manner whatsoever, any confidential or proprietary
information covered or contemplated by this Agreement, unless
expressly authorized to do so by the Company in writing.
(b) For the purpose of this Agreement, "Confidential
Information" shall mean all information of the Company, its
subsidiaries and affiliates , relating to or useful in connection with
the business of the Company, its subsidiaries, affiliates, and National
Airlines, whether or not a "trade secret" within the meaning of
applicable law, which at the time of Executive's initial employment is
not generally known to the general public and which has been or is from
time to time disclosed to or developed by Executive as a result of his
employment with the Company. Confidential Information includes, but is
not limited to (1) the Company's product development and marketing
programs, data, future plans, formula, food and beverage procedures,
recipes, finances, financial management systems, player identification
systems (Gold Card), pricing systems, client and customer lists,
organizational charts, salary and benefit programs, training programs,
computer software, business records, files, drawings, prints,
prototyping models, letters, notes, notebooks, reports, and copies
thereof, whether prepared by him or others, and any other information
or documents which Executive is told or reasonably ought to know that
the Company regards as confidential.
(c) Executive agrees that upon separation of employment for
any reason whatsoever, he shall promptly deliver to the Company all
confidential information, including but not limited to, documents,
reports, correspondences, computer printouts, work papers, files,
computer lists, telephone and address books, rolodex cards, computer
tapes, disks, and any and all records in his possession (and all copies
thereof) containing any such
confidential information created in whole or in part by Executive
within the scope of his employment, even if the items do not contain
confidential information.
(d) Executive shall also be required to sign a non-disclosure
or confidentiality agreement. Such an agreement shall also remain in
full force and effect, provided that, in the event of any conflict
between any such agreement(s) and this Agreement, this Agreement shall
control.
(e) This paragraph and any of its provisions will survive
Executive's separation of employment for any reason.
9. Non-competition Upon Separation of Employment.
(a) As an inducement for the Company to enter into this
Agreement, and in consideration of the Employment of Executive, as well
as TARSAP II shares set forth in Paragraph 5(d) and the separation pay
and benefits set forth in Section 7(d), Executive agrees that,
commencing on the Executive's Separation Date with the Company, if
Separated Without Cause, and continuing for the 52 week salary
continuation period set forth in Section 7(d), Executive shall not,
except with the prior written consent of the Company, engage in
directly or indirectly in any activity, in any manner or capacity,
whether as an employee, consultant, employer, partner, stockholder
(other than as the holder of less than 5% of the stock of a
corporation, the securities of which are traded on a national
securities exchange or in the over-the-counter market), director,
officer, or otherwise (including but not limited to solicitation of
customers or employees of the Company, its subsidiaries, affiliates)
which is competitive with or in competition with the Company, its
subsidiaries, affiliates, in the casino, casino/hotel, or casino/resort
business within 150 miles of any location that the Company, its
subsidiaries, or their affiliates shall at the Separation Date or
during the Salary Continuation Period then be doing business, or has
announced the building of, or agreement to build and/or manage a
casino, casino/hotel and/or casino/resort. This provision shall apply
to the United States, Canada, and Mexico, and any islands located off
the coast of the United States and/or Caribbean where the Company has a
property. Executive acknowledges and agrees that the provisions of this
paragraph are reasonable both as to time and geographic limitation in
light of the fact the
Company, and its subsidiaries, solicit customers for each of its
subsidiaries throughout these geographic areas.
(b) Executive will not, at any time prior to two years from
the Separation Date, either directly or indirectly, induce, persuade or
attempt to induce or persuade, any salary grade 20 or higher employee
of the Company, its subsidiaries or National Airlines to leave or
abandon employment with the Company, its subsidiaries or affiliates for
any reason whatsoever.
(c) Executive will not, beginning on his Separation Date,
communicate with employees, customers, or suppliers of the Company, or
its subsidiaries or affiliates of the Company or any principals or
employee thereof, or any person or organization in any manner
whatsoever that is detrimental to the interest of the Company, its
subsidiaries or affiliates. Executive further agrees from his
Separation Date not to make statements to the press or general public
with respect to the Company or its subsidiaries or affiliates that is
detrimental to the Company, its subsidiaries, affiliates or employees
without the express written prior authorization of the Company.
Notwithstanding the foregoing, Executive shall not be prohibited at the
expiration of the non-competition period from pursuing his own business
interests which may conflict with the interests of the Company.
(d) Executive and Company each intends and agrees that if, in
any action before any court, agency or arbitration tribunal, legally
empowered to enforce the covenants in this Paragraph 9, any term,
restriction, covenant or promise contained therein is found to be
unreasonable and, accordingly, unenforceable, then such terms,
restriction, covenant or promise shall be deemed modified to the extent
necessary to make it enforceable by such court or agency.
(e) Should any court, agency or arbitral tribunal legally
empowered to enforce the covenants contained in this Paragraph 9 fail
or refuse to enforce the terms, restrictions, covenants or promises
herein (except if it has been modified to make it enforceable): (i)
Executive understands that all eligibility for TARSAP II will cease;
(ii) Executive will return all TARSAP II stock received and/or the net
amount after tax received for selling said stock; (iii) the Company, if
applicable, will not be
obligated to pay Executive the severance payments contained in the
Agreement (except for required benefits under benefit plans); and
(iv) Executive will also reimburse the Company any severance
payments received, as well as any reasonable costs, and attorney
fees to secure such repayments.
(f) As further inducement for the Company to enter into the
Agreement, and in consideration of the employment of Executive, as well
as the TARSAP II set forth in Paragraph 5(d), the provisions of Section
9 will also apply to Executive's Separation for Cause and Executive's
Separation Without Good Reason except in these circumstances, the
non-competition period will be 26 weeks rather than the 52 weeks.
10. Injunctive Relief. Executive acknowledges and agrees that the terms
provided in Sections 8 and 9 are the minimum necessary to protect the Company,
its affiliates and subsidiaries, its successors and assigns in the use and
enjoyment of the confidential information and the good will of the business of
the Company. Executive further agrees that damages cannot fully and adequately
compensate the Company in the event of a breach or violation of the restrictive
covenants (confidential information and non-competition) and that without
limiting the right of the Company to pursue all other legal and equitable
remedies available to it, that the Company shall be entitled to injunctive
relief, including but not limited to a temporary restraining order, temporary
injunction and permanent injunction, to prevent any such violations or any
continuation of such violations for the protection of the Company. The granting
of injunctive relief will not act as a waiver by the Company to pursue any and
all additional remedies.
11. Post Employment Cooperation. Executive agrees that upon separation
for any reason from the Company, Executive will cooperate in assuring an orderly
transition of all matters being handled by him. Upon the Company providing
reasonable notice to him, he will also appear as a witness at the Company's
request and/or assist the Company in any litigation, bankruptcy or similar
matter in which the Company or any affiliate thereof is a party or otherwise
involved. The Company will defray any reasonable out-of-pocket expenses incurred
by Executive in connection with any such appearance. In connection thereof, the
Company agrees to indemnify Executive as prescribed in Article Tenth of the
Certificate of Incorporation, as amended, of HET filed on November 2, 1989, in
the Office of the Secretary of
State of the State of Delaware and recorded at Book 935, Page 780, ET. SEQ.
12. Waiver of Breaches. The failure, delay or forbearance of any of the
parties to insist on strict performance of any term, provision or condition of
this Agreement or, in the case of the Company, of any comparable agreement with
any other company, or to exercise any right or remedy, shall not be construed as
a waiver. Express waiver by any party in one or more instances shall not waive
subsequent strict performance of such term, provision or condition by any other
party.
13. Notices. Any notice to be given hereunder by either party to the
other pay may be effected by personal delivery, in writing, or by mail,
registered or certified, postage prepaid with return receipt requested. Mailed
notices shall be addressed to parties at the addresses set forth below, but each
party may change his or its address by written notice. Notices shall be deemed
communicated as the actual receipt or refusal of receipt by Executive.
If to Executive: Xxxx Xxxxxx
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If to Company: Xxxxxx'x Operating Company, Inc.
14. Assignment. This Agreement and the rights, interests and benefits
hereunder are personal to the Executive and shall not be assigned, transferred
or pledged in any manner by Executive or any personal representatives, heirs,
administrators, distributees or any other person claiming under Executive by
virtue of this Agreement. This Agreement and all of the Company's rights and
obligations hereunder may be assigned, without Executive's consent, to any
entity which acquires substantially all of the assets of the Company or which
merges with the Company and which agrees to be bound hereby.
15. Attorneys Fees. If any legal action or other proceeding is brought
for the enforcement of this Agreement of an alleged dispute, breach or default
in connection with any
provision of this Agreement, the Company, if successful shall be entitled to
recover reasonable attorney fees and other costs incurred in such action or
proceeding in addition to any other relief to which it may be entitled.
16. Partial Invalidity. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall, nevertheless, continue in full force and without
being impaired or invalidated in any way, except as indicated otherwise.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada, without regard to principles of
conflict law applicable to contracts made and to be performed with such state.
The Agreement shall be liberally construed to maximize protection of the
Company's rights in confidential information and customer relations. If any
provision of this Agreement is held to be overly broad, invalid or otherwise
unenforceable under the applicable law and circumstances by the reviewing court,
Executive agrees to reduction of the scope (including time and geographic area)
of such provision as such court deems necessary and appropriate to permits its
enforcement as modified. The invalidity or unenforceability in whole or part, of
any provision of this Agreement shall not affect the validity or enforceability
of any provision unless otherwise indicated in this Agreement.
18. No Conflicting Agreement. By signing this Agreement, Executive
warrants that he is not a party to any restrictive covenant, agreement, or
contract which limits the performance of his duties and responsibilities under
this Agreement or under which such performance would constitute a breach.
19. Jurisdiction. Any judicial proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement or any
agreement identified herein may be brought only in state or federal courts of
the State of Nevada, and by the execution and delivery of this Agreement, each
of the parties hereto accepts for itself the exclusive jurisdiction of the
aforesaid courts and irrevocably consents to the jurisdiction of such courts
(and the appropriate appellate courts) in any such proceedings, waives any
objection to venue laid therein and agrees to be bound by the judgment rendered
thereby in connection with this Agreement or any agreement identified herein
20. Survival of Provisions. The provisions of this Agreement shall
survive any separation of Executive if so provided herein and if necessary or
desirable fully to accomplish the purpose of such provisions, including without
limitation the rights and obligations of the Executive under Paragraphs 6, 8 and
14 hereof.
21. Miscellaneous. The Section headings herein are for convenience only
and shall not affect the meaning or interpretation of the contents hereof. This
Agreement contains the entire agreement between the parties hereto with respect
to the subject matter hereof and supercedes all prior agreements and
understandings between the parties with respect to the subject matter hereof. No
supplement or modification of this Agreement shall be binding unless in writing
and signed by both parties. This Agreement may be executed in multiple
counterparts; each of which shall be deemed an original and all of which
together shall constitute one instrument. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
personal representative, successors and permitted assigns.
EXECUTIVE ACKNOWLEDGES THAT HE HAS HAD SUFFICIENT OPPORTUNITY TO REVIEW THIS
AGREEMENT WITH HIS ATTORNEY. IF HE DID NOT DO SO, IT IS BECAUSE HE READ AND
UNDERSTOOD THE ENTIRE AGREEMENT AND DID NOT BELIEVE HE NEEDED LEGAL ADVICE.
EXECUTIVE AGREES THAT THE RESTRICTIONS CONTAINED IN THIS AGREEMENT ARE FAIR AND
APPROPRIATE UNDER THE CIRCUMSTANCES.
IN WITNESS WHEREOF, the parties hereto have knowingly and voluntarily
executed the Agreement as of the day and year first written above.
XXXX XXXXXX XXXXXX'X OPERATING
COMPANY, INC.
/s/ XXXX XXXXXX /s/ XXXXXXX X. XXXX
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