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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This Agreement is made as of December 15, 1997 by and between HOTEL
DISCOVERY, INC., a Minnesota corporation (the "COMPANY"), and XXXX X. XXXXXX
(the "EXECUTIVE").
W I T N E S S E T H
WHEREAS, the Company desires to employ Executive in accordance with the
terms and conditions stated in this Agreement; and
WHEREAS, Executive desires to accept that employment pursuant to the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereto agree as follows:
I. EMPLOYMENT
1.1 Employment as Chief Financial Officer and Vice President - Finance.
The Company hereby employs Executive as Chief Financial Officer and Vice
President - Finance and Executive accepts such employment pursuant to the terms
of this Agreement. Executive shall report to and take direction from the Chief
Operating Officer. The Executive will perform those duties which are usual and
customary for a Chief Financial Officer and Vice President - Finance of a
restaurant enterprise. Executive shall be employed at the Company's corporate
offices. She shall perform her duties in a manner reasonably expected of a Chief
Financial Officer and Vice President Finance of a restaurant company.
1.2 Term. Employment shall be for an initial term of up to three years
commencing on January 5, 1998 and continuing until the earlier of (i) January 5,
2001 or (ii) the date Executive's employment terminates pursuant to Article III
hereof. This Agreement shall be automatically renewed for three (3) additional
one (1) year terms unless the Board gives written notice of termination to
Executive not less than ninety (90) days prior to expiration of the initial term
or the renewal term then in progress, as applicable.
II. COMPENSATION, BENEFITS AND PERQUISITEs
2.1 Base Salary. The Company shall pay Executive an annualized base
salary ("BASE SALARY") of $130,000 during the first year of this Agreement. The
Base Salary shall be payable in equal installments in the time and manner that
other employees of the Company are compensated. The Chief Operating Officer will
review the Base Salary at least annually and may, in his or her sole discretion,
increase it to reflect performance, appropriate industry guideline data or other
factors.
2.2 Bonus. Executive shall receive an annualized bonus ("BONUS") of up
to 25% of her Base Salary payable quarterly on the first quarterly anniversary
of the effective date of this
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Agreement and each quarter thereafter, the amount of such Bonus to be dependent
upon Executive's satisfaction of certain quarterly objectives mutually agreed
upon by Executive and the Chief Operating Officer. The Chief Operating Officer
and Executive will review and, if mutually agreed, revise the criteria for the
Bonus at least annually.
2.3 Moving Expenses. Executive shall receive a one-time payment of
$15,000 toward the expenses of selling her home in Georgia and shall also be
reimbursed for the expense of moving her personal property to Minnesota. Pending
the sale of Executive's home in Georgia, the Company will reimburse Executive,
for up to six months, for the lesser of the mortgage payments for her home in
Georgia and her new home in Minnesota.
2.4 Airfare Reimbursement. Pending Executive's relocation to Minnesota,
Executive will be reimbursed for the cost of up to six round-trip plane tickets
from Atlanta to Minneapolis.
2.5 Automobile Allowance. Executive shall receive an automobile
allowance of $500 per month.
2.6 Vacations. Executive shall be entitled to three weeks' paid
vacation, or such greater amount of time as determined by the Board of Directors
of the Company (the "BOARD").
2.7 Employee Benefits. The Company agrees to pay 100% of the COBRA
continuation premiums for health and dental insurance currently maintained by
Executive and her family until the expiration of any waiting periods required
for full participation by Executive and her family under the Company's plans and
policies. Thereafter, Executive shall be entitled to the usual and customary
benefits and perquisites which the Company generally provides to its other
executives under its applicable plans and policies (including, without
limitation, group health, group dental and group life coverage). Executive shall
pay any contributions which are generally required of executives to receive any
such benefits.
III. TERMINATION OF EXECUTIVE'S EMPLOYMENT
3.1 Termination of Employment. Executive's employment under this
Agreement may be terminated by the Company or Executive at any time for any
reason. The termination shall be effective as of the date specified by the party
initiating the termination in a written notice delivered to the other party,
which date shall not be earlier than the date such notice is delivered to the
other party. This Agreement shall terminate in its entirety immediately upon the
death of Executive. Except as expressly provided to the contrary in this section
or applicable law, Executive's rights to pay and benefits shall cease on the
date her employment under this Agreement terminates. If Executive's employment
is terminated by the Company (i) for a reason other than for "cause" as defined
in Section 3.2 below, or (ii) following a change of control of the Company
(defined as the sale in one or more private transactions of fifty percent (50%)
or more of the Company), she shall continue to receive her Base Salary for a
period of six (6) months from the date of termination.
3.2 Cause. For purposes of this Article III, "CAUSE" shall mean only
the following: (i) commission of a felony; (ii) theft or embezzlement of Company
property or commission of
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similar acts involving moral turpitude; (iii) alcohol or drug abuse which, in
the judgment of the Board, has rendered Executive incapable of carrying out her
duties hereunder; or (iv) any other failure by Executive to substantially
perform her material duties under this Agreement (excluding nonperformance
resulting from disability), which failure is not cured within 30 days after
written notice from the Chairman of the Board specifying the act of
nonperformance.
3.3 Notice. Each party must provide the other with at least 30 days'
written notice of termination of Executive's employment under this Agreement.
IV. Confidentiality
4.1 Prohibitions Against Use. Executive acknowledges and agrees that
during the term of this Agreement she may have access to various trade secrets
and confidential business information ("CONFIDENTIAL INFORMATION") of the
Company. Executive agrees that she shall use such Confidential Information
solely in connection with her obligations under this Agreement and shall
maintain in strictest confidence and shall not disclose any such Confidential
Information, directly or indirectly, or use such information in any other way
during the term of this Agreement or for a period of two (2) years after the
termination of this Agreement. Executive further agrees to take all reasonable
steps necessary to preserve and protect the Confidential Information. The
provisions of this Section 4.1 shall not apply to information known by Executive
which (i) was in possession of Executive prior to receipt thereof from the
Company, (ii) is or becomes generally available to the public other than as a
result of a disclosure by Executive, or (iii) becomes available to Executive
from a third party having the right to make such disclosure.
4.2 Remedies. Executive acknowledges that the Company's remedy at law
for any breach or threatened breach by Executive of Section 4.1 will be
inadequate. Therefore, the Company shall be entitled to injunctive and other
equitable relief restraining Executive from violating those provisions, in
addition to any other remedies that may be available to the Company under this
Agreement or applicable law.
V. NON-COMPETITION
5.1 Agreement Not to Compete. Executive agrees that, on or before the
date which is one (1) year after the date Executive's employment under this
Agreement terminates, she will not, unless she receives the prior approval of
the Board, directly or indirectly engage in any of the following actions:
(a) Own an interest in (except as provided below), manage, operate,
join, control, lend money or render financial or other assistance to,
or participate in or be connected with, as an officer, employee,
partner, stockholder, consultant or otherwise, any entity whose primary
business is entertainment-themed restaurants in the United States, such
as, but not limited to, Rainforest Cafe, Plant Hollywood, Cheesecake
Factory, Hard Rock Cafe, Dive!, and Xxxx & Busters. However, nothing in
this subsection (a) shall preclude Executive from holding less than 1%
of the outstanding capital stock of any corporation required to file
periodic reports with the Securities and Exchange Commission under
Section 13 or 15(d) of
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the Securities Exchange Act of 1934, as amended, the securities of
which are listed on any securities exchange, quoted on the National
Association of Securities Dealers Automated Quotation System or traded
in the over-the-counter market.
(b) Intentionally solicit, endeavor to entice away from the
Company, or otherwise interfere with the Company's relationship with
any person who is employed by or otherwise engaged to perform services
for the Company (including, but not limited to, any independent sales
representatives or organizations), whether for Executive's own account
or for the account of any other individual, partnership, firm,
corporation or other business organization.
If the scope of the restrictions in this Section 5.1 are determined by a court
of competent jurisdiction to be too broad to permit enforcement of such
restrictions to their full extent, then such restrictions shall be construed or
rewritten (blue-lined) so as to be enforceable to the maximum extent permitted
by law, and Executive hereby consents, to the extent she may lawfully do so, to
the judicial modification of the scope of such restrictions in any proceeding
brought to enforce them.
VI. MISCELLANEOUS
6.1 Amendment. This Agreement may be amended only in writing, signed by
both parties.
6.2 Entire Agreement. This Agreement contains the entire understanding
of the parties with regard to all matters contained herein. There are no other
agreements, conditions or representations, oral or written, expressed or
implied, with regard thereto. This Agreement supersedes all prior agreements
relating to the employment of Executive by the Company.
6.3 Assignment. This Agreement shall be binding upon, and shall inure
to the benefit of parties and their respective successors, assigns, heirs and
personal representatives and any entity with which the Company may merge or
consolidate or to which the Company may sell substantially all of its assets.
6.4 Notices. Any notice required to be given under this Agreement shall
be in writing and shall be delivered either in person or by certified or
registered mail, return receipt requested. Any notice by mail shall be addressed
as follows:
If to the Company, to: Hotel Discovery, Inc.
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: President
If to Executive, to: Xxxx X. Xxxxxx
0000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
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or to such other addresses as either party may designate in writing to the other
party from time to time.
6.5 Waiver of Breach. Any waiver by either party of compliance with any
provision of this Agreement by the other party shall not operate or be construed
as a waiver of any other provision of this Agreement, or of any subsequent
breach by such party of a provision of this Agreement.
6.6 Severability. If any one or more of the provisions (or portions
thereof) of this Agreement shall for any reason be held by a final determination
of a court of competent jurisdiction to be invalid, illegal, or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions (or portions of the provisions) of this Agreement, and the
invalid, illegal or unenforceable provisions shall be deemed replaced by a
provision that is valid, legal and enforceable and that comes closest to
expressing the intention of the parties hereto.
6.7 Governing Law. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Minnesota, without giving effect to
conflict of law principles.
6.8 Arbitration. Any controversy or claim arising out of or relating to
this Agreement or the breach of this Agreement or the breach of any exhibits
attached to this Agreement shall be settled by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association, and a
judgment upon the award rendered by the arbitrator(s) may be entered in any
court having jurisdiction. The arbitrator(s) shall have the authority to award
the prevailing party its costs and reasonable attorney's fees which shall be
paid by the non-prevailing party. In the event the parties hereto agree that it
is necessary to litigate any dispute hereunder in a court, the non-prevailing
party shall pay the prevailing party its costs and reasonable attorney's fees.
Notwithstanding anything in this Section to the contrary, during the pendency of
any dispute or controversy arising under or in connection with this Agreement or
exhibits attached to this Agreement, the Company shall be entitled to seek an
injunction or restraining order in a court of competent jurisdiction to enforce
the provisions of Articles IV and V.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date set forth above.
HOTEL DISCOVERY, INC.
/s/ Xxxxxx X. Xxxxxx
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By: Xxxxxx X. Xxxxxx
Its: President
/s/ Xxxx X. Xxxxxx
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XXXX X. XXXXXX
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