Exhibit 10.1
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EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement"), executed as of September 17,
2001, by and between XXXX X. XXXXXXX HOTELS, INC., a Delaware Corporation (the
"Company"), and XXX XXXXXXXXX ("Employee").
RECITALS
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Employee will be employed as the President of the Company on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
AGREEMENT
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1. Employment. The Company hereby employs Employee as President
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("President") of the Company, and Employee hereby accepts employment on the
terms and subject to the conditions set forth herein. Employee shall have and
exercise the authority and perform the duties normally incident to the office of
President, as well as such other duties as may be reasonably delegated to him by
the Company's Chief Executive Officer (the "CEO") and Board of Directors (the
"Board").
2. Employment Date. Employee's employment with the Company shall begin on
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September 15, 2001 (the "Commencement Date"), and shall continue until
terminated by either party.
3. Compensation.
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(a) Company agrees to pay the Employee an annual "Base Salary" of
Three Hundred Thousand Dollars ($300,000.00) less applicable withholding, to be
paid to Employee on the Company's normal payroll schedule. For purposes of this
Agreement, "Base Salary" shall not include any performance incentives, bonuses,
or other benefits.
(b) The Employee shall be entitled to participate in any incentive or
supplemental compensation plan or arrangement instituted by the Company for
which the Employee is eligible as determined by the plan, and shall be eligible
for an annual cash bonus for his first year of employment of up to forty percent
(40%) of the Base Salary. The amount of such bonus, if any, will be determined
on the same basis and under the same bonus plan used for other executive
officers of Company.
(c) The Employee agrees and hereby acknowledges that any money,
benefits or other forms of compensation paid to Employee by a private individual
or entity affiliated with
the Company ("Extra Compensation") are provided as additional compensation for
his services to the Company. Employee also agrees and acknowledges that Extra
Compensation in no way affects the Duty of Loyalty and other fiduciary duties
Employee owes to Company and its shareholders as an officer of the Company
(collectively "Fiduciary Duties"). The Employee further agrees to immediately
notify the Company in writing at the end of each year the full amount of any
Extra Compensation received by him that year and the person paying that Extra
Compensation.
(d) Stock Options. The Company shall grant to Employee options to
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purchase one hundred thousand (100,000) shares ("Options") of the Company's
Class A Common Stock, par value One Dollar ($1.00) ("Common Stock"), for their
fair market value on the grant date of the option, pursuant to the Company's
1994 Stock Option Plan as in effect on the date hereof.
Except as otherwise provided herein, each of the Options granted
hereunder shall vest and become exercisable over a four (4) year period
following their Grant Date as follows: twenty-five percent (25%) of the granted
Options shall vest and become exercisable on each anniversary of the Grant Date
of the Options. Notwithstanding the foregoing, all Options granted to Employee
shall immediately vest and become exercisable upon the sale, merger,
reorganization or recapitalization of the Company pursuant to which the holders
of the Common Stock of the Company become entitled to receive stock, securities,
or other assets in exchange for their shares of Common Stock.
4. Benefits. Employee shall be entitled to receive the following
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benefits from the Company:
(a) Insurance. The Company shall, at its sole expense, provide such
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medical and disability insurance as is generally available to other executive
employees of the Company. If immediate coverage under the Company's insurance
plans is not available to Employee as of the Commencement Date, the Company
shall pay, or reimburse Employee for, the cost of maintaining full coverage
under Employee's existing life, health and disability insurance policies until
Employee is covered under the Company's plans.
(b) Retirement Plan. Employee shall be entitled to participate in any
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retirement, savings or benefit plans that the Company makes available to any of
its executive employees.
(c) Club Memberships. The Company shall provide a golf membership at
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Highland Springs Country Club (the "Country Club"). Employee shall be
responsible for all monthly dues and food and other incidental charges incurred
by Employee for personal use at the Country Club.
(d) Vacation. Employee shall be entitled to three (3) weeks of paid
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vacation annually.
(e) Indemnity; D & O Insurance. To the extent permitted by law, the
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Company shall indemnify Employee for any and all liability or damages incurred
by Employee
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in connection with his employment hereunder; and Employee shall be covered by
any Directors and Officers Liability Insurance which is maintained by Company.
(f) Miscellaneous. The Company shall reimburse Employee for all costs
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and expenses reasonably incurred by Employee in connection with the performance
of his duties hereunder.
5. Relocation. The Company shall pay the relocation costs for Employee
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and his family to move from Phoenix to Springfield, including without limitation
(i) packing and moving their personal effects, furniture and other property,
(ii) travel costs (including meals and lodging), (iii) insurance costs related
to the move. In the event the Company terminates this Agreement, it shall pay
the relocation costs for Employee and his family to move to Phoenix from
Springfield as specified above.
6. Employee Conduct.
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(a) If the Employee has the authority to make purchases or
disbursements on behalf of the Company, the Employee will make no purchase or
disbursement or other payment of any kind or character which is in violation of
any written or unwritten policy of the Company or in violation of any applicable
statute, rule, regulation, ordinance, or order of any jurisdiction, foreign or
domestic. The Employee further agrees to indemnify and hold harmless the Company
from any liabilities, obligations, claims, penalties, fines, expenses, or losses
resulting from any willful or unlawful acts of the Employee which contravene in
any material respect any policy of the Company or any statute, rule, regulation,
ordinance, or order of any jurisdiction, foreign or domestic, applicable to the
Employee or the Company.
(b) The Employee agrees to disclose honestly and fully all
information and documentation in Employee's possession concerning all
transactions or events relating to or affecting the Company as and to the extent
such information or documentation is requested by the Company.
7. Restrictive Covenants.
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(a) Consideration. Employee agrees that his employment with the
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Company, his continuing employment with the Company, and the Company's provision
of training and proprietary information to the Employee is sufficient
consideration for agreeing to the restrictive covenants contained in this
Agreement.
(b) Defense. The parties agree that the existence of any claim or
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cause of action of the Employee against the Company, based on this Agreement or
any other express or implied agreement, shall not constitute a defense to the
enforcement by the Company of any of the restrictive covenants contained in this
Agreement. These restrictive covenants shall survive the termination, for any
reason, of any other agreement between the parties or of the employment
relationship between the parties.
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(c) Scope. Employee agrees that if any court of competent
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jurisdiction determines that any provision contained in these restrictive
covenants are too broad or otherwise unreasonable, the court shall amend only
such provisions as necessary for the restrictions contained in these covenants
to be enforceable, as so amended, shall be enforced by such court. Employee
further agrees that any alleged breach or alleged failure of performance of this
Agreement by Company shall not render any provision of this Agreement
unenforceable.
(d) Covenant Not to Compete. During the Employee's employment by the
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Company, Employee agrees not to become employed or otherwise affiliated with any
person or business organization as an officer or executive employee of any
business directly in competition with the Company's business.
(e) Covenant Not to Disclose. Employee acknowledges that during
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Employee's employment, the Company will provide to Employee and Employee will
otherwise obtain, have access to, or learn certain Confidential Information of
the Company. The term "Confidential Information" includes, without limitation,
any information received from clients, bid and purchasing practices and
policies, client lists, contracts, pricing lists, discount practices and
policies, marketing and promotional practices, types of services, types of
products, supplier accounts, purchasing and pricing arrangements, employee
compensation, technical data, proprietary training, financial information,
computer databases, and other non-public and proprietary data. Employee agrees
not to disclose any Confidential Information to any person or business
organization (or agent or representative of a person or business organization)
outside of the Company at any time.
(f) Covenant Not to Solicit. For a period of two years after
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termination of his employment, Employee agrees not to solicit, hire, or be
connected with the solicitation or hiring of any person who was an employee of
the Company within the six months prior to termination of Employee's employment.
(g) No Disparagement. The Employee agrees not to engage in any
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pattern of conduct which involves publishing or making written or verbal
statements or remarks which are disparaging or damaging to the integrity,
reputation or goodwill of the Company or its management.
8. Termination.
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(a) The Company may terminate this Agreement at any time with or
without "Cause". As used herein, the term Cause means gross negligence, fraud or
willful misconduct.
(b) This Agreement shall terminate upon the death of Employee or, at
the election of the Company, if Employee is unable to perform his duties
hereunder by reason of illness, injury or incapacity for one hundred eighty
(180) consecutive days ("Disability") (during which time Employee shall continue
to be compensated as provided herein).
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9. General Provisions.
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(a) Assignment Prohibited. Employee may not assign or delegate any of
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his rights or obligations hereunder. Company may assign this Agreement in
connection with a merger, sale of the stock or assets, reorganization, spin-off
or separation of any subsidiary or department or any similar transaction.
(b) Notice. Unless contrary provisions are expressly set forth
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herein, all notices of any kind shall be in writing and shall, at the option of
the party giving the notice, be (i) personally delivered, (ii) delivered by
reputable overnight courier, (iii) sent by telefax, or (iv) sent, by certified
or registered mail, postage prepaid, return receipt requested, to the person
entitled to receive the notice at the last address provided in writing by such
person to the other signatory. All such notices shall be deemed given on the
date the notice is actually received at the address indicated.
(c) Titles and Captions. All section titles or captions in this
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Agreement are for convenience only. They shall not be deemed part of this
Agreement and in no way define, limit, extend or describe the scope or intent of
any provisions hereof. Except as specifically provided otherwise, references to
"Sections" are to Sections of this Agreement.
(d) Further Action. The parties to this Agreement shall execute and
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deliver all documents, provide all information and take or refrain from taking
action as may be necessary or appropriate to achieve the purposes of this
Agreement.
(e) Binding Effect. This Agreement shall be binding upon and inure to
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the benefit of the parties hereto and their heirs, executors, administrators,
successors, legal representatives and permitted assignees.
(f) Entire Agreement. This Agreement constitutes the entire agreement
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among the parties hereto pertaining to the subject matter of this Agreement and
supersedes all prior agreements, negotiations, and discussions among the parties
hereto regarding the subject matter of this Agreement.
(g) Creditors. None of the provisions of this Agreement shall be for
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the benefit of or enforceable by any creditors of the parties.
(h) Waiver. No failure by any party to insist upon the strict
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performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute waiver of any such breach or any other covenant, duty, agreement or
condition.
(i) Counterparts. This Agreement may be executed in counterparts, all
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of which together shall constitute an agreement binding on both of the parties,
notwithstanding that both such parties are not signatories to the original or
the same counterpart. Each party shall become bound by this Agreement
immediately upon affixing his or its signature hereto, independently of the
signature of the other party.
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(j) Applicable Law. This Agreement shall be construed in accordance
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with and governed by the internal laws of the State of Missouri, without regard
to the principles of conflicts of law. The parties agree that the appropriate
venue for any dispute relating to this Agreement shall be the Circuit Court for
Xxxxxx County, Missouri, or the U.S. District Court for the Western District of
Missouri, Southern Division, located at Springfield, Missouri.
(k) Invalidity. Notwithstanding Section 7C, above, if any provision
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of this Agreement is deemed to be invalid or unenforceable by any court of
competent jurisdiction, the remainder of this Agreement shall remain valid and
fully enforceable.
(l) Drafting. No provision of this Agreement shall be interpreted for
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or against any party hereto on the basis that such party was the draftsman of
such provision; and no presumption or burden of proof shall arise disfavoring or
favoring an party by virtue of the authorship of any of the provisions of this
Agreement.
IN WITNESS WHEREOF, Company and Employee have caused this Employment
Agreement to be executed as of the date first set forth above.
COMPANY:
XXXX X. XXXXXXX HOTELS, INC.
By: /s/Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx,
Chairman of the Board
EMPLOYEE:
/s/ Xxx Xxxxxxxxx
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Xxx Xxxxxxxxx
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