Exhibit 10.39
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of August 14,
2003, by and between XXXXXXX ENTERTAINMENT COMPANY, a Delaware corporation
having its corporate headquarters at Xxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx
00000 (the "Company") and Xxxxx X. Xxxx, a resident of Niceville, Florida
("Executive").
WITNESSETH:
WHEREAS, the Company has entered into an Agreement and Plan of Merger,
of even date herewith (the "Merger Agreement"), among the Company, GET Merger
Sub, Inc. (the "Sub"), and ResortQuest International, Inc.("ResortQuest"),
pursuant to which the Sub will be merged with and into ResortQuest with
ResortQuest surviving as a wholly-owned subsidiary of the Company (the
"Merger");
WHEREAS, the Executive is employed as the President and Chief Executive
Officer of ResortQuest; and
WHEREAS, the Company desires to employ Executive as the President and
Chief Executive Officer of its ResortQuest subsidiary upon the closing of the
Merger, and Executive desires to serve in such capacity pursuant to the terms of
this Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
AGREEMENT
1. EMPLOYMENT; TERM. The Company hereby agrees to employ
Executive, and Executive hereby agrees to employment with the Company upon the
terms and conditions contained in this Agreement. The term of Executive's
employment hereunder shall commence upon the Closing of the Merger (the
"Effective Date") and shall continue for a period of four (4) years from and
after the Effective Date (the "Initial Period"). For purposes of this Agreement,
a "Contract Year" shall mean a one year period commencing on the Effective Date
or any anniversary thereof. This Agreement shall automatically renew for one (1)
year terms (each referred to as an "Extension Period") (the Initial Period and
each Extension Period collectively referred to as the "Employment Period")
unless either party notifies the other party at least ninety (90) days prior to
the expiration of the Initial Period or any Extension Period.
2. DUTIES; TITLE.
(a) Description of Duties.
(i) During the Employment Period, Executive shall serve
the Company as the President and Chief Executive Officer of its
ResortQuest subsidiary and report directly to the President and Chief
Executive Officer ("CEO") of the Company. Executive shall also perform
such other duties as the CEO of the Company shall reasonably determine.
(ii) Executive shall faithfully perform the duties
required of his office. Executive shall devote all of his business time
and effort to the performance of his duties to the Company. Executive
shall not, during the Employment Period, be engaged in any other
business activity pursued for gain, profit or other pecuniary advantage
if such activity interferes with Executive's duties and
responsibilities hereunder.
(b) Company Policies. Executive shall be subject to and shall
comply with all codes of conduct, personnel policies and procedures applicable
to senior executives of the Company, including, without limitation, policies
regarding sexual harassment, conflicts of interest and xxxxxxx xxxxxxx.
3. CASH COMPENSATION.
(a) Base Salary. During the Employment Period, the Company shall
pay to Executive an annual salary of $350,000 (the "Base Salary"). The Company
shall evaluate Executive for base salary increases annually based on
performance.
(b) Annual Cash Bonus. During the Employment Period, Executive
shall be eligible for an annual cash bonus of up to a target of 55% of
Executive's Base Salary (the "Year-End Bonus") to be paid to him in each
calendar year with the determination of the Year-End Bonus, if any, to be based
on the achievement of certain goals and Company performance criteria as
established by the CEO and approved by the Board's Human Resources Committee.
The Year-End Bonus for each calendar year shall be paid to Executive on or
before February 28th of the immediately succeeding year.
(c) Withholding. The Base Salary and each Year-End Bonus shall be
subject to applicable withholding and shall be payable in accordance with the
Company's payroll practices.
4. BENEFITS; EXPENSES; ETC.
(a) Expenses. During the Employment Period, the Company shall
reimburse Executive, in accordance with the Company's policies and procedures,
for all reasonable expenses incurred by Executive in connection with the
performance of his duties for the Company.
(b) Vehicle Allowance. During the Employment Period, Executive
shall be entitled to receive from the Company a vehicle allowance of $800 per
month.
(c) Vacation. During the Employment Period, Executive shall be
entitled to three (3) weeks vacation during each Contract Year.
(d) Company Plans. During the Employment Period, Executive shall
be entitled to participate in and enjoy the benefits of (i) the Company Health
Insurance Plan, (ii) the Company 401(k) Savings Plan, (iii) the Company
Supplemental Deferred Compensation ("SUDCOMP") Plan, and (iv) any health, life,
disability, retirement, pension, group insurance, or other similar plan or plans
which may be in effect or instituted by the Company for the benefit of
executives
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generally, upon such terms as may be therein provided. A summary of such
benefits as in effect on the date hereof has been provided to Executive, the
receipt of which is hereby acknowledged.
5. TERMINATION. Executive's employment hereunder may be
terminated prior to the expiration of the Employment Period as follows:
(a) Termination by Death. Upon the death of Executive, Executive's
employment shall automatically terminate as of the date of death.
(b) Termination by Company for Permanent Disability. At the option
of the Company, Executive's employment may be terminated by written notice to
Executive or his personal representative in the event of the Permanent
Disability of Executive. As used herein, the term "Permanent Disability" shall
mean a physical or mental incapacity or disability which renders Executive
unable substantially to render the services required hereunder for a period of
ninety (90) consecutive days or one hundred eighty (180) days during any twelve
(12) month period as determined in good faith by the Company.
(c) Termination by Company for Cause. At the option of the
Company, Executive's employment may be terminated by written notice to Executive
upon the occurrence of any one or more of the following events (each, a
"Cause"):
(i) any action by Executive constituting fraud,
self-dealing, embezzlement, or dishonesty in the course of his
employment hereunder;
(ii) any conviction of Executive of a crime involving
moral turpitude;
(iii) failure of Executive after written reasonable notice
promptly to comply with any material, valid and legal directive of the
CEO;
(iv) a material breach by Executive of any of his
obligations under this Agreement and failure to cure such breach within
ten (10) days of his receipt of written notice thereof from the
Company(or, if such material breach is not capable of being cured
within ten (10) days, Executive shall fail to commence such cure within
ten (10) days and diligently prosecute such cure); or
(v) a failure by Executive to perform adequately his
responsibilities under this Agreement as demonstrated by objective and
verifiable evidence showing that the business operations under
Executive's control have been materially harmed as a result of
Executive's gross negligence or willful misconduct.
(d) Termination by Executive for Good Reason. At the option of
Executive, Executive may terminate his employment by written notice to Company
given within a reasonable time after the occurrence of the following
circumstances ("Good Reason"), unless the Company cures the same within thirty
(30) days of such notice:
(i) Any reduction by Company of his Base Salary
(excluding a reduction of up to 5% of his Base Salary provided such
reduction is made on a Company-wide basis);
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(ii) Company's requiring Executive to be based anywhere
other than Destin, Florida, except for required travel on the Company's
business; or
(iii) A material breach by the Company of any of its
obligations under this Agreement.
(e) Termination by Company Without Cause or by Executive Without
Good Reason. The Executive's employment may be terminated by the Company other
than for Permanent Disability or Cause upon written notice to Executive at any
time ("Without Cause") or by Executive other than for Good Reason upon written
notice to the Company at any time ("Without Good Reason").
6. EFFECT OF TERMINATION.
(a) Effect Generally. If Executive's employment is terminated
prior to the fourth anniversary of the Effective Date, the Company shall not
have any liability or obligation to Executive other than as specifically set
forth in Section 5, Section 6 and Section 7 hereof. Upon the termination of
Executive's employment for any reason, he shall, upon the request of the
Company, resign from all corporate offices held by Executive.
(b) Effect of Termination by Death. Upon the termination of
Executive's employment as a result of death, Executive's estate shall be
entitled to receive an amount equal to: (i) accrued but unpaid Base Salary
through the date of termination; (ii) a pro rata portion of Executive's Year-End
Bonus, if any, for the year in which termination occurs; (iii) any unpaid
portion of the Year-End Bonus for prior calendar years, accrued and unpaid
vacation pay, unreimbursed expenses incurred pursuant to Section 4(a) or (b) and
any other benefits owed to Executive pursuant to any written employee benefit
plan or policy of the Company, excluding benefits payable to any plan
beneficiary pursuant to a contractual beneficiary designation by Executive; (iv)
the portion of any restricted stock grant that is free from restrictions as of
the date of death; (v) Executive's vested stock options as of the date of death,
the vesting and exercise of which is governed by the Omnibus Plan; and (vi) all
of Executive's stock options, which pursuant to the Omnibus Plan are accelerated
as of the termination date and are exercisable until the expiration of the
applicable stock option term.
(c) Effect of Termination for Permanent Disability. Upon the
termination of Executive's employment hereunder as a result of Permanent
Disability, Executive shall be entitled to receive an amount equal to: (i)
accrued but unpaid Base Salary through the date of termination; (ii) a pro rata
portion of Executive's Year-End Bonus, if any, for the year in which termination
occurs; (iii) any unpaid portion of the Year-End Bonus for prior calendar years,
long-term disability benefits available to executives of the Company, accrued
and unpaid vacation pay, unreimbursed expenses incurred pursuant to Section 4(a)
or (b) and any other benefits owed to Executive pursuant to any written employee
benefit plan or policy of the Company; (iv) the portion of any restricted stock
grant that is free from restrictions as of the termination date; (v) Executive's
vested stock options as of the date of termination, the vesting of which is
governed by the Omnibus Plan; and (vi) all of Executive's stock options, which
pursuant to the Omnibus Plan are accelerated as of the termination date and are
exercisable until the expiration of the applicable stock option term. Payments
to Executive hereunder shall be
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reduced by any payments received by Executive under any worker's compensation or
similar law.
(d) Effect of Termination by the Company for Cause or by Executive
Without Good Reason. Upon the termination of Executive's employment by the
Company for Cause or by Executive Without Good Reason, Executive shall be
entitled to receive an amount equal to: (i) accrued but unpaid Base Salary
through the date of termination; (ii) any unpaid Year-End Bonus for prior
calendar years, accrued but unpaid vacation pay, unreimbursed expenses incurred
pursuant to Section 4(a) or (b) and any other benefits owed to Executive
pursuant to any written employee benefit plan or policy of the Company; and
(iii) the portion of any restricted stock grant that is free from restrictions
as of the termination date. All stock options, to the extent not theretofore
exercised, shall terminate on the date of termination of employment under this
Section 6(d). Executive shall also forfeit any right to a Year-End Bonus for the
calendar year in which Executive's termination occurs.
(e) Effect of Termination by the Company Without Cause or by
Executive for Good Reason. Upon the termination of Executive's employment
hereunder by the Company Without Cause or by Executive for Good Reason,
Executive shall be entitled to: (i) an amount equal to Executive's Base Salary
over a 12 month period, payable in installments as normal payroll over the 12
months following the date of termination; (ii) any unpaid portion of the
Year-End Bonus for prior calendar years and a prorated portion of any bonus the
Executive may earn as a Year-End Bonus for the current year, provided the
Executive has been employed for more than six months in the current year; (iii)
accrued and unpaid vacation pay, unreimbursed expenses incurred pursuant to
Section 4(a) or (b) and any other benefits owed to Executive pursuant to any
written employee benefit plan or policy of the Company; (iv) the portion of any
restricted stock or restricted stock unit grant that is free from restrictions
as of the date of termination and the acceleration and immediate release of all
restrictions from all shares of any restricted stock or restricted stock unit
grant that are subject to restrictions as of the date of termination and
scheduled to vest during the 12 month period following the date of termination;
(v) the vested portion of Executive's stock options, and the acceleration and
immediate vesting of Executive's unvested stock options that are scheduled to
vest during the 12 month period following the date of termination; and (vi)
continued coverage during the 12 month period following the date of termination
under the Company's employee medical and life insurance plans. Executive shall
have one (1) year from the date of such termination Without Cause or by
Executive for Good Reason to exercise all vested stock options.
7. CHANGE OF CONTROL.
(a) Definition. A "Change of Control" shall be deemed to have
taken place if:
(i) any person or entity, including a "group" as defined
in Section 13(d)(3) of the Securities Exchange Act of 1934, other than
the Company, a wholly-owned subsidiary thereof, or any employee benefit
plan of the Company or any of its subsidiaries becomes the beneficial
owner of Company securities having 50% or more of the combined voting
power of the then outstanding securities of the Company that may be
cast for the election of directors of the Company (other than as a
result of the issuance of securities initiated by the Company in the
ordinary course of business);
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(ii) as the result of, or in connection with, any cash
tender or exchange offer, merger or other business combination, sale of
assets or contested election, or any combination of the foregoing
transactions, the holders of all the Company's securities entitled to
vote generally in the election of directors of the Company immediately
prior to such transaction constitute, following such transaction, less
than a majority of the combined voting power of the then-outstanding
securities of the Company or any successor corporation or entity
entitled to vote generally in the election of the directors of the
Company or such other corporation or entity after such transactions; or
(iii) the Company sells all or substantially all of the
assets of the Company.
(b) Effect of Change of Control. In the event that within one (1)
year following a Change of Control, the Company terminates Executive Without
Cause or Executive terminates employment for Good Reason (and for purposes of
the definition of "Good Reason" as used in this paragraph 7(b), the following
two circumstances shall also constitute Good Reason in addition to the three
circumstances described in Section 5(d): (i) any adverse change by Company in
the Executive's position or title described in Section 2 hereof, whether or not
any such change has been approved by a majority of the members of the Board; and
(ii) the assignment to Executive, over his reasonable objection, of any duties
materially inconsistent with his status as Chief Executive Officer of
ResortQuest or a substantial adverse alteration in the nature of his
responsibilities), Executive shall be entitled to (in lieu of the benefits
provided pursuant to Section 6(e)): (i) an amount equal to Executive's Base
Salary over a 24 month period, payable in installments as normal payroll over
the 24 months following the date of termination; (ii) the payment of two (2)
times the Executive's average bonus for the prior three (3) calendar years;
(iii) any unpaid portion of the Year-End Bonus for prior calendar years, accrued
and unpaid vacation pay, unreimbursed expenses incurred pursuant to Section 5(a)
or (b) and any other benefits owed to Executive pursuant to any written employee
benefit plan or policy of the Company; (iv) the portion of any restricted stock
or restricted stock unit grant that is free from restrictions as of the date of
termination and the acceleration and immediate release of all restrictions from
all restricted stock or restricted stock unit grants that are subject to
restrictions as of the date of termination; (v) the vested portion of
Executive's stock options and the acceleration and immediate vesting of any
unvested portion of Executive's stock options; and (vi) continued coverage
during the 24 month period following the date of termination under the Company's
employee medical and life insurance plans. In addition, if such termination
occurs within the second anniversary of the date of this Agreement, the
Executive shall receive an additional one and a half (1-1/2) times the
Executive's Base Salary payable in a lump sum upon such termination. Executive
shall have two (2) years from the date of such termination to exercise all
vested stock options.
(c) Going Private Transaction. Notwithstanding the foregoing, if
any entity initiates any Rule 13e-3 transaction, as that term is defined in Rule
13e-3 promulgated under the Securities Exchange Act of 1934 (the "Rule 13e-3
Transaction"), and all conditions precedent to the Company's obligation to
consummate the Rule 13e-3 Transaction shall have been satisfied, all unvested
stock options shall vest and all restrictions shall be removed from any
restricted stock grant shares; provided, however, that if the Rule 13e-3
Transaction is not thereafter consummated, the acceleration of stock option
vesting and removal of restricted stock grant restrictions shall be deemed to be
null and void.
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(d) Excise Tax. In connection with or arising out of a Change in
Control of the Company, in the event Executive shall be subject to the tax
imposed by Section 4999 of the Code (the "Excise Tax") in respect of any payment
or distribution by the Company or any other person or entity to or for
Executive's benefit (a "Payment"), the Company shall pay to Executive an
additional amount. The additional amount (the "Gross-Up Payment") shall be equal
to the Excise Tax, together with any federal, state and local income tax,
employment tax and any other taxes associated with this payment such that
Executive incurs no out-of-pocket expenses associated with the Excise Tax.
Provided, however, nothing in this Section shall obligate the Company to pay
Executive for any federal, state or local income taxes imposed upon Executive by
virtue of a Payment.
8. EXECUTIVE COVENANTS.
(a) General. Executive and the Company understand and agree that
the purpose of the provisions of this Section 8 is to protect legitimate
business interests of the Company, as more fully described below, and is not
intended to impair or infringe upon Executive's right to work, earn a living, or
acquire and possess property from the fruits of his labor. Executive hereby
acknowledges that the post-employment restrictions set forth in this Section 8
are reasonable and that they do not, and will not, unduly impair his ability to
earn a living after the termination of employment with the Company. Therefore,
subject to the limitations of reasonableness imposed by law upon restrictions
set forth herein, Executive shall be subject to the restrictions set forth in
this Section 8.
(b) Definitions. The following capitalized terms used in this
Section 8 shall have the meanings assigned to them below, which definitions
shall apply to both the singular and the plural forms of such terms:
"Confidential Information" means any confidential or proprietary
information possessed by the Company, including, without limitation, any
confidential "know-how," customer lists, details of client and consultant
contracts, current and anticipated customer requirements, pricing policies,
price lists, market studies, business plans, operational methods, marketing
plans or strategies, product development techniques or plans, computer software
programs (including object code and source code), data and documentation, data
base technologies, systems, structures and architectures, inventions and ideas,
past, current and planned research and development, compilations, devices,
methods, techniques, processes, financial information and data, business
acquisition plans, new personnel acquisition plans and any other information
that would constitute a trade secret under the common law or statutory law of
the State of Tennessee.
"Person" means any individual or any corporation, partnership, joint
venture, association or other entity or enterprise.
"Protected Employees" means employees of the Company or its affiliated
companies who are employed by the Company or its affiliated companies at any
time within six (6) months prior to the date of termination of Executive for any
reason whatsoever or any earlier date (during the Restricted Period) of an
alleged breach of the Restrictive Covenants by Executive.
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"Restricted Period" means the period of Executive's employment by the
Company plus a period extending one (1) year from the date of termination of
employment; provided, however, the Restricted Period shall be extended for a
period equal to the time during which Executive is in breach of his obligations
to the Company under this Section 8. Notwithstanding any other provision of this
Agreement to the contrary, the Restricted Period for purposes of the
Non-Competition covenant set forth below in Section 8(c)(ii) will extend for one
(1) year from the date of termination of employment only in the event of a
termination of Executive's employment either (i) by the Company pursuant to
Sections 5 (c), or (ii) by the Executive pursuant to Section 5(e).
"Restrictive Covenants" means the restrictive covenants contained in
Section 8(c) hereof:
(c) Restrictive Covenants.
(i) Restriction on Disclosure and Use of Confidential
Information. Executive understands and agrees that the Confidential
Information constitutes a valuable asset of the Company and its
affiliated entities, and may not be converted to Executive's own use or
converted by Executive for the use of any other Person. Accordingly,
Executive hereby agrees that Executive shall not, directly or
indirectly, at any time during the Restricted Period or thereafter,
reveal, divulge or disclose to any Person not expressly authorized by
the Company any Confidential Information, and Executive shall not, at
any time during the Restricted Period or thereafter, directly or
indirectly, use or make use of any Confidential Information in
connection with any business activity other than that of the Company.
The parties acknowledge and agree that this Agreement is not intended
to, and does not, alter either the Company's rights or Executive's
obligations under any state or federal statutory or common law
including, without limitation, any state or federal statutory or common
law regarding trade secrets and unfair trade practices.
(ii) Non-Competition. Executive shall not, during the
Restricted Period, directly or indirectly, for himself or on behalf of
or in conjunction with any other Person: (x) engage, as an officer,
director, shareholder, owner, partner, joint venturer or in a
managerial capacity whether as an employee, independent contractor,
consultant or advisor, or as sales representative, in any noncommercial
property management, rental or sales business in competition with the
Company or any subsidiary of the Company, within seventy-five (75)
miles of the locations in which the Company or any of the Company's
subsidiaries conduct any noncommercial property management, rental or
sales business or management business (the "Territory"), or (y) call
upon any Person which is at that time, or which has been, within one
(1) year prior to that time, a customer of the Company (including the
subsidiaries thereof) within the Territory for the purpose of providing
noncommercial property management, rental or sales services to property
owners and/or renters in direct competition with the Company or any
subsidiary of the Company within the Territory. The foregoing shall not
be deemed to prohibit Executive from acquiring as an investment not
more than two percent (2%) of the capital stock of a competing business
whose stock is traded on a national securities exchange or
over-the-counter.
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(iii) Non-solicitation of Protected Employees. Executive.
understands and agrees that the relationship between the Company and
each of its Protected Employees constitutes a valuable asset of the
Company and may not be converted to Executive's own use or converted by
Executive for the use of any other Person. Accordingly, Executive
hereby agrees that during the Employment Period plus a period extending
an additional twenty-four (24) months from the date of termination of
employment, Executive shall not directly or indirectly on Executive's
own behalf or on behalf of any Person solicit any Protected Employee to
terminate his or her employment with the Company. For purposes of this
Agreement, the term "solicit" shall expressly exclude Persons
responding to generic trade journal and periodical advertisements.
(iv) Non-interference with Company Opportunities.
Executive understands and agrees that all business opportunities with
which he is involved during his employment with the Company constitute
valuable assets of the Company and its affiliated entities, and may not
be converted to Executive's own use or converted by Executive for the
use of any other Person. Accordingly, Executive hereby agrees that
during the Restricted Period or thereafter, Executive shall not
directly or indirectly on Executive's own behalf or on behalf of any
Person, interfere with, solicit, pursue, or in any way make use of any
such business opportunities.
(v) Company Property. All records, designs, patents,
business plans, financial statements, manuals, memoranda, lists and
other property delivered to or compiled by Executive by or on behalf of
the Company or its representatives, vendors or customers which pertain
to the business of the Company shall be and remain in the property of
the Company and be subject at all times to its discretion and control.
Likewise, all correspondence, reports, records, charts, advertising
materials and other similar data pertaining to the business, activities
or future plans of the Company which is collected by Executive shall be
delivered promptly to the Company without request by it upon
termination of Executive's employment.
(d) Exceptions from Disclosure Restrictions. Anything herein to
the contrary notwithstanding, Executive shall not be restricted from disclosing
or using Confidential Information that:
(i) is or becomes generally available to the public other
than as a result of an unauthorized disclosure by Executive or his
agent;
(ii) becomes available to Executive in a manner that is
not in contravention of applicable law from a source (other than the
Company or its affiliated entities or one of its or their officers,
employees, agents or representatives) that is not known by Executive,
after reasonable investigation, to be bound by a confidential
relationship with the Company or its affiliated entities or by a
confidentiality or other similar agreement; or
(iii) is required to be disclosed by law, court order or
other legal process; provided, however, that in the event disclosure is
required by law, court order or legal process, Executive shall provide
the Company with prompt notice of such requirement
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so that the Company may seek an appropriate protective order prior to
any such required disclosure by Executive.
(e) Enforcement of the Restrictive Covenants.
(i) Rights and Remedies upon Breach. In the event
Executive breaches, or threatens to commit a breach of, any of the
provisions of the Restrictive Covenants, the Company shall have the
right and remedy to enjoin, preliminarily and permanently, Executive
from violating or threatening to violate the Restrictive Covenants and
to have the Restrictive Covenants specifically enforced by any court of
competent jurisdiction, it being agreed that any breach or threatened
breach of the Restrictive Covenants would cause irreparable injury to
the Company and that money damages would not provide an adequate remedy
to the Company. The rights referred to herein shall be independent of
any others and severally enforceable, and shall be in addition to, and
not in lieu of, any other rights and remedies available to the Company
at law or in equity.
(ii) Severability of Covenant. Executive acknowledges and
agrees that the Restrictive Covenants are reasonable and valid in all
respects. If any court determines that any Restrictive Covenant, or any
part thereof, is invalid or unenforceable, the remainder of the
Restrictive Covenants shall not thereby be affected and shall be given
full effect, without regard to the invalid portions.
9. COOPERATION IN FUTURE MATTERS. Executive hereby agrees that,
for a period of three (3) years following the date of his termination, he shall
cooperate with the Company's reasonable requests relating to matters that
pertain to Executive's employment by the Company, including, without limitation,
providing information or limited consultation as to such matters, participating
in legal proceedings, investigations or audits on behalf of the Company, or
otherwise making himself reasonably available to the Company for other related
purposes. Any such cooperation shall be performed at times scheduled taking into
consideration Executive's other commitments, and Executive shall be compensated
(except for cooperation in connection with legal proceedings) at a reasonable
hourly or per diem rate to be agreed by the parties to the extent such
cooperation is required on more than an occasional and limited basis. Executive
shall also be reimbursed for all reasonable out of pocket expenses. Executive
shall not be required to perform such cooperation to the extent it conflicts
with any requirements of exclusivity of service for another employer or
otherwise, nor in any manner that in the good faith belief of Executive would
conflict with his rights under or ability to enforce this Agreement or in the
event of a termination by the Company pursuant to Section 5(e) above.
10. INDEMNIFICATION. The Company shall indemnify Executive and
hold him harmless from and against any and all costs, expenses, losses, claims,
damages, obligations or liabilities (including actual attorneys' fees and
expenses) arising out of any acts or failures to act by the Company, its
directors, employees or agents, that occurred prior to the Effective Date, or
arising out of or relating to any acts, or omissions to act, made by Executive
on behalf of or in the course of performing services for the Company to the
fullest extent permitted by the Bylaws of the Company, or, if greater, as
permitted by applicable law, as the same shall be in effect from time to time.
If any claim, action, suit or proceeding is brought, or any claim relating
thereto is made, against Executive with respect to which indemnity may be sought
against the Company
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pursuant to this Section, Executive shall notify the Company in writing thereof,
and the Company shall have the right to participate in, and to the extent that
it shall wish, in its discretion, assume and control the defense thereof, with
counsel satisfactory to Executive.
11. EXECUTIVE'S REPRESENTATIONS AND WARRANTIES. Executive
represents and warrants that he is free to enter into this Agreement and, as of
the Effective Date, that he is not subject to any conflicting obligation or any
disability which shall prevent or hinder Executive's execution of this Agreement
or the performance of his obligations hereunder; that no lawsuits or claims are
pending or, to Executive's knowledge, threatened against Executive; and that he
has never been subject to bankruptcy, insolvency, or similar proceedings, has
never been convicted of a felony or a crime involving moral turpitude, and has
never been subject to an investigation or proceeding by or before the Securities
and Exchange Commission or any state securities commission. The Company shall
have the authority to conduct an independent investigation into the background
of Executive and Executive agrees to fully cooperate in any such investigation.
The Company shall notify Executive if it intends to conduct such an
investigation.
12. NOTICES. Any and all notices or other communications required
or permitted to be given under any of the provisions of this Agreement shall be
in writing and shall be deemed to have been duly given when personally delivered
or mailed by first class registered mail, return receipt requested, or by
commercial courier or delivery service, or by facsimile or electronic mail,
addressed to the parties at the addresses set forth below (or at such other
address as any party may specify by notice to all other parties given as
aforesaid):
(a) if to the Company, to: Xxxxxxx Entertainment Company
Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: President
Facsimile: (000) 000-0000
(b) if to Executive, to: Xxxxx X. Xxxx
000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
and/or to such other persons and addresses as any party shall have specified in
writing to the other by notice as aforesaid.
13. MISCELLANEOUS.
(a) Termination of Employment Agreements. In the event that the
Merger Agreement is terminated this Agreement shall also terminate and be of no
further force or effect. The Company and Executive agree that upon the Effective
Date, the Employment Agreement, dated October 6, 2002, between ResortQuest and
Executive, shall terminate and be of no further force or effect.
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(b) Entire Agreement. This Agreement and the Exhibits hereto
constitute the entire agreement of the parties with respect to the subject
matter hereof and may not be modified, amended, or terminated except by a
written agreement signed by all of the parties hereto. Nothing contained in this
Agreement shall be construed to impose any obligation on the Company to renew
this Agreement and neither the continuation of employment nor any other conduct
shall be deemed to imply a continuing obligation upon the expiration of this
Agreement.
(c) Assignment; Binding Effect. This Agreement shall not be
assignable by Executive, but it shall be binding upon, and shall inure to the
benefit of, his heirs, executors, administrators, and legal representatives.
This Agreement shall be binding upon the Company and inure to the benefit of the
Company and its respective successors and permitted assigns. This Agreement may
only be assigned by the Company to an entity controlling, controlled by, or
under common control with the Company; provided, however, that no such
assignment shall relieve the Company of any of its obligations hereunder.
(d) Waiver. No waiver of any breach or default hereunder shall be
considered valid unless in writing, and no such waiver shall be deemed a waiver
of any subsequent breach or default of the same or similar nature.
(e) Enforceability. Subject to the terms of Section 8(e) hereof,
if any provision of this Agreement shall be held invalid or unenforceable, such
invalidity or unenforceability shall attach only to such provision and shall not
in any manner affect or render invalid or unenforceable any other severable
provision of this Agreement, and this Agreement shall be carried out as if any
such invalid or unenforceable provision were not contained herein, unless the
invalidity or unenforceability of such provision substantially impairs the
benefits of the remaining portions of this Agreement.
(f) Headings. The section headings contained herein are for the
purposes of convenience only and are not intended to define or limit the
contents of the sections.
(g) Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall be deemed one original.
(h) Confidentiality of Agreement. The parties agree that the terms
of this Agreement as they relate to compensation, benefits, and termination
shall, unless otherwise required by law (including, in the Company's reasonable
judgment, as required by federal and state securities laws), be kept
confidential; provided, however, that any party hereto shall be permitted to
disclose this Agreement or the terms hereof with any of its legal, accounting,
or financial advisors provided that such party ensures that the recipient shall
comply with the provisions of this Section 13(h).
(i) Governing Law. This Agreement shall be deemed to be a contract
under the laws of the State of Florida and for all purposes shall be construed
and enforced in accordance with the internal laws of said state.
(j) No Third Party Beneficiary. This Agreement shall not confer
any rights or remedies upon any person or entity other than the parties hereto
and their respective successors, heirs, executors, administrators, legal
representatives, and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be duly executed as of the date first above written.
XXXXXXX ENTERTAINMENT COMPANY
By:/s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: President and Chief Executive
Officer
EXECUTIVE:
/s/ Xxxxx X. Xxxx
---------------------------------------
Xxxxx X. Xxxx
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