EXHIBIT 10.7 (d)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("this "Agreement"), executed as of December 1, 2003
by and between XXXX X. XXXXXXX HOTELS, INC., a Delaware Corporation (the
"Company"), and XXXX XXXXXXXX ("Employee").
RECITALS
Employee will be employed as the Chief Financial Officer 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
1. EMPLOYMENT.
The Company hereby employs Employee as Chief Financial Officer ("CFO") 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 CFO, as well as such other duties as may be reasonably delegated
to him by the Chairman, President, and Board of Directors (the "Board").
2. EMPLOYMENT DATE.
The Employee has been employed by the company since June 16, 1998 and will
be employed until terminated by either party.
3. COMPENSATION.
a) As of April 1, 2003, the Company agreed to pay the Employee an annual
"BASE SALARY" of Two Hundred Ten Thousand Dollars ($210,000.00) 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 up to fifty percent (50%) of his base
salary. The amount of such bonus, if any, will be determined on the same
basis and according to the same bonus plan used for other executive
officers of Company.
c) STOCK OPTIONS. Pursuant to the Company's 1994 Stock Option Plan as in
effect on the date hereof, the Employee will participate in the grant of
stock options
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Employment Agreement Cont'd
as directed by the Board of Directors Compensation Committee and with
approval of the Chairman and CEO.
4. BENEFITS.
Employee shall be entitled to receive the following benefits from the
Company:
a) INSURANCE. The Employee shall participate in the medical and disability
insurance plans as is generally available to other executive employees of
the Company.
b) RETIREMENT PLAN. Employee shall be entitled to participate in any
retirement, savings or benefit plans that the company makes available to
any of its executive employees.
c) VACATION. Employee shall be entitled to three (3) weeks of paid vacation
annually.
d) INDEMNITY; D & O INSURANCE. To the extent permitted by law, the Company
shall indemnify Employee for any and all liability or damages incurred by
Employee in connection with his employment hereunder; and Employee shall be
covered by any Directors and Officers Liability Insurance which is
maintained by Company.
e) MISCELLANEOUS. The company shall reimburse Employee for all costs and
expenses reasonably incurred by Employee in connection with the performance
of his duties hereunder.
5. EMPLOYEE CONDUCT.
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.
6. RESTRICTIVE COVENANTS.
a) CONSIDERATION. Employee agrees that his employment with the Company, his
continuing employment with the Company, and the Company's provision of
training
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Employment Agreement Cont'd
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 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.
c) SCOPE. Employee agrees that if any court of competent 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
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 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 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 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.
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Employment Agreement Cont'd
7. TERMINATION.
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).
c) In the event the Employee is terminated without cause, the Company will
pay the Employee an amount equal to twelve (12) months of pay distributed
on the Company's normal payroll schedule beginning the next pay period
after termination of employment. In addition the Employee will receive an
amount equal to his annual bonus award pursuant to the Executive Bonus Plan
and the Company will pay the Employee's COBRA payments for 12 months
following termination of employment.
d) In the event there is a change in control of Company; or all or
substantially all of the assets of the Company are disposed of pursuant to
a merger, consolidation, or other transaction in which the Company is not
the surviving corporation, the Employee may at his option be relieved of
his obligation pursuant to this Agreement and the Company will pay the
Employee an amount equal to twelve (12) months of pay. This amount will be
distributed on the Company's normal payroll schedule beginning the
following pay period after termination employment. In addition the Employee
will receive an amount equal to his annual bonus award pursuant to the
Executive Bonus Plan and the Company will pay the Employee's COBRA payments
for 12 months after termination of employment.
e) Should the Employee wish to voluntarily terminate employment, the
Employee will provide the Chairman a minimum of 60 days notice.
8. GENERAL PROVISIONS.
a) ASSIGNMENT PROHIBITED. Employee may not assign or delegate any of 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 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.
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Employment Agreement Cont'd
c) TITLES AND CAPTIONS. All section titles or captions in this 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 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 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 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 the
benefit of or enforceable by any creditors of the parties.
h) WAIVER. No failure by any party to insist upon the strict 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 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.
j) APPLICABLE LAW. This Agreement shall be construed in accordance 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 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 or
against any party hereto on the basis that such party was the draftsman of
such provision; and
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Employment Agreement Cont'd
no presumption or burden of proof shall arise disfavoring or favoring a
part 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.
/s/ Xxxx X. Xxxxxxx
-----------------------------------------
BY:
XXXX X. XXXXXXX,
CHAIRMAN OF THE BOARD
EMPLOYEE:
/s/ Xxxx Xxxxxxxx
-----------------------------------------
XXXX XXXXXXXX
December 1, 2003
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