Exhibit 10.7b
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this 25th day of
January, 2000, by and between Xxxx X. Xxxxxxx Hotels, Inc., a Delaware
corporation (the "Company"), and XXXX XXXX (the "Executive").
W I T N E S S E T H
WHEREAS, Company desires to employ Executive and Executive desires to be
employed by Company.
NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Executive
hereby agree as follows:
1. Offer and Acceptance of Employment. Commencing on April 1, 2000, (the
"Effective Date"), the Company agrees to and hereby does, employ Executive as
its Regional Vice-President. Executive hereby accepts employment in that
capacity and agrees to discharge faithfully, diligently, and to the best of his
ability the responsibilities of that position commencing on the Effective Date
for a period of five (5) years (the "Employment Term").
2. Duties and Responsibilities.
a. During the Employment Term, the Executive (i) shall be in charge of
the operations and management of the hotels in his region, (ii) shall
report to the Sr. Vice President/Operations, and (iii) shall assume and
perform such further reasonable responsibilities and duties assigned to him
by the Sr. Vice President/Operations and the Chairman of the board of
Directors.
b. Excluding periods of vacation and sick leave to which the Executive
is entitled, the Executive agrees to devote the whole of his working time
and energy to the
business and affairs of the Company and to use his best efforts to perform
the responsibilities assigned to him hereunder faithfully and efficiently.
3. Compensation. The following provisions apply during the time the
Executive is employed by the Company:
a. Base salary. During the Employment Term, the Executive shall
receive a base salary of One Hundred-Sixty Thousand Dollars ($160,000,00)
(the "Base Salary") payable in accordance with the Company's normal payroll
practices for salaried employees.
b. Annual Bonus. Executive shall receive an annual bonus ("Annual
Bonus") in a minimum amount of Forty Thousand Dollars ($40,000) for each
fiscal year of the Agreement, including fiscal year 1999. Each Annual Bonus
shall be accrued as of the end of the fiscal year for which the Annual
Bonus is awarded and paid no later than April 1st of the following year,
unless Executive shall otherwise timely elect to defer the receipt of the
Annual Bonus under any deferred compensation plan of the Company then in
effect.
c. Savings and Retirement Plans. In addition to the Base Salary and
Annual Bonus payable as hereinabove provided, the Executive shall be
entitled to participate, during the Employment Term in all savings and
retirement plans or programs applicable to other key executives of the
Company.
d. Welfare Benefit Plans. During the Employment Term, the Executive,
and the Executives dependents as to medical and dental benefits, shall be
eligible to participate in and shall receive all benefits under each
welfare benefit plan of the Company, including, without limitation, all
medical, dental, disability, group life, accidental death, and travel
accident insurance plans and programs of the company.
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e. Expenses. During the Employment Term, the Executive shall be
entitled, upon submission of proper substantiation, to receive
reimbursement for all reasonable business-related expenses actually paid or
incurred by the Executive in connection with the discharge of his duties
hereunder and in the promotion of the business of the Company.
f. Fringe Benefits. During the Employment Term, the Executive shall be
entitled to fringe benefits in accordance with the policies of the Company
with respect to other key executives of the Company.
g. Vacation. During the Employment Term, the Executive shall be
entitled to paid vacation in accordance with the policies of the Company
with respect to other key executives of the Company.
4. Termination. The following provisions relate solely to termination of
the Executive's employment during the Employment Term:
a. Death or Disability.
i. Subject to Section 6 below, this Agreement shall terminate
automatically upon the Executive's death.
ii. Subject to Section 6 below, the Company shall at all times
have the right to terminate the Executive's employment
hereunder at any time after the Employee shall be absent
from his employment, for whatever cause, including but not
limited to mental or physical incapacity, illness or
disability, (collective "Disability") for a continuous
period of more than twenty-six (26) weeks.
b. Cause. The Company may terminate the Executive's employment for
"Cause" by a majority vote of the Company's Board of Directors at a meeting
where the
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Executive has had an opportunity to be present and express his response.
For purposes of this Agreement, "Cause" means:
i. any act of acts of dishonesty, moral turpitude, or willful
misconduct:
ii. the continuing failure of the Executive to perform his
obligations under Section 2 of this Agreement thirty (30)
days after having received a written notice specifying the
manner in which he is failing to perform those obligations.
5. Notice of Termination. Any termination by the Company shall be
communicated in writing to the other in accordance with Section 13(b) of this
Agreement and the notice shall specify the termination or resignation date.
6. Obligations of the Company Upon Termination. The following provisions
apply only in the event the Executive is terminated during the Employment Term:
a. Death. If the Executive's employment is terminated by reason of the
Executive's death, this Agreement shall terminate without further
obligation to the Executive's legal representatives under this Agreement
other than those payment amounts accrued and payable hereunder at the date
of the Executive's death. Anything in this Agreement to the contrary
notwithstanding, the Executive's family shall be entitled to receive
benefits at lease equal to those provided by the Company generally to
surviving families of key executives of the Company under its plans,
programs and policies relating to family death benefits, if any.
b. Disability. If the Executive's employment is terminated by reason
of the Executive's Disability, the Executive shall be entitled to receive
the amount specified in Section 6(d)(i) and (ii) hereof and to receive
disability and other benefits at least equal to
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those provided by the Company to disabled employees and/or their families
in accordance with such plans, programs, and policies relating to
disability, if any.
c. Cause. If the Executive's employment is terminated for Cause as
defined in Section 4(b) of this Agreement, the Company shall pay the
Executive his Base Salary through the date of termination at the rate in
effect at the time notice of termination is given and shall have no further
obligation to the Executive under this Agreement except as to vested
employee benefits.
7. Non-Competition. At all times during the Executive's employment with the
company and for a period on one (1) year after Executive is no longer employed
by the Company, the Executive shall not, within those hotel/convention center
markets in which the Company is operating or plans to operate within the next
one (1) year, directly or indirectly, engage in any business, enterprise or
employment whether as owner, operator, shareholder, director, partner, financial
backer, creditor, consultant, agent, executive or any capacity whatsoever that
is directly or indirectly competitive with the business of the Company;
provided, however, that the foregoing shall not be deemed to prohibit the
Executive from acquiring, solely as an investment and through market purchases,
securities of any issuer that are registered under Section 12(b) or Section
12(g) of the Securities Exchange Act of 1934, as amended, and that are listed or
admitted for trading on any United States national securities exchange or that
are quoted on the NASDAQ National Market System or any similar system of
automated dissemination of quotations or securities prices in common use, so
long as the Executive is not a member of any control group (within the meaning
of the rules and regulations of the Securities and Exchange Commission) of any
such issuer.
8. Non-Solicitation of Employees and Customers. The Executive shall not, at
any time during his employment hereunder and for a period of one (1) year after
the date his
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employment is terminated or on which he resigns, directly or indirectly, for
himself or for any other person, firm, corporation, partnership, association or
other entity, (i) attempt to employ, employ or enter into any contractual
arrangement with any employee or former employees of the Company, its
affiliates, or predecessors-in-interest for a period in excess of six (6)
months: and/or (ii) call on or solicit any of the actual or targeted prospective
customers or suppliers of the Company with respect to any matters, related to or
competitive with the business of the Company, nor shall the Executive make known
the names or addresses of such customers or suppliers or any information
relating in any manner to the Company's trade or business relationships with
such customers or suppliers.
9. Non-Disclosure. Except as expressly permitted by the Company, or in
connection with the performance of his duties hereunder, the Executive shall not
at any time during or subsequent to his employment by the Company, disclose,
directly or indirectly, to any person, firm, corporation, partnership,
association or other entity any proprietary or confidential information relating
to the Company or any information concerning the Company's financial condition
or prospects, the company's customers or suppliers, the Company's sources of
leads and methods of obtaining new business, the design, development, or
construction of the company's properties or the Company's methods of doing and
operating its business (collectively, "Confidential Information"). Confidential
Information shall not include information which, at the time of disclosure, is
known or available to the general public by publication or otherwise through no
act or failure to act on the part of the Executive. The Executive acknowledges
and agrees that the Confidential Information is a valuable, special and unique
asset of the Company's business.
10. Books and Records. All books, records and accounts relating in any
manner to the Company's customers, suppliers, or methods of conducting business
whether prepared by the
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Executive or otherwise coming into the Executive's possession, and all copies
thereof in the Executive's possession, shall be the exclusive property of the
Company and shall be returned immediately to the Company upon termination of the
Executive's employment hereunder or upon the Company's request at any time.
11. Injunction. Executive acknowledges that if he were to breach any of the
provisions of Section 7, Section 8, Section 9, or Section 10, it would result in
immediate and irreparable injury to the Company which cannot be adequately or
reasonably compensated at law. Therefore, Executive agrees that the Company
shall be entitled, if any such breach shall occur or be threatened or attempted,
if it so elects, to a decree of specific performance and to a temporary and
permanent injunction, without being required to post a bond, enjoining and
restraining a breach by the Executive, his associates, his partners or agents,
either directly or indirectly, and that right to injunction shall be cumulative
to whatever remedies or actual damages the Company may possess.
12. Successors.
a. This Agreement is personal to the Executive and without the prior
written consent of the company, the benefits accrued and payable hereunder
shall not be assignable by the Executive otherwise than by will or the laws
of descent and distribution. This Agreement shall inure to the benefit of
and be enforceable by the Executive's legal representatives.
b. This Agreement shall inure to the benefit of and be binding upon
the company and its successors.
c. In the event that another corporation or unincorporated entity
becomes a Successor (as such term is defined below) of the company, then
the Successor shall, by an agreement in form and substance reasonably
satisfactory to the Executive, expressly
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assume and agree to perform this Agreement in the same manner and to the
same extent as the Company be required to perform if there had been no
Successor. As used herein, the term "Successor" means another corporation
or unincorporated entity or group of corporations or unincorporated
entities which (i) acquires all or substantially all of the assets of the
company, or, (ii) is the surviving entity as a result of the merger of the
Company into that entity.
13. Miscellaneous.
a. This Agreement shall be governed by and construed in accordance
with the laws of the State of Missouri. The captions of this Agreement are
not part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written
agreement executed by the parties hereto or their respective successor and
legal representatives.
b. All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive: Mr. Xxxx Xxxx
------------------- c/o Embassy Suites Greensboro/Piedmont Triad
Airport
000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
If to the Company: Xx. Xxxx X. Xxxxxxx
----------------- Xxxx X. Xxxxxxx Hotels, Inc.
300 Xxxx X. Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
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With a copy to: Xxxxx X. Xxxxxx, Esq.
-------------- Xxxx X. Xxxxxxx Hotels, Inc.
300 Xxxx X. Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
or to such other address as either party shall have furnished to the other
in writing in accordance herewith. Notice and communications shall be
effective when actually received by the addressee.
c. If any term or provision of the Agreement or the application hereof
to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of that
term or provision to persons or circumstances other than those to which it
is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law. Moreover, if a court of competent
jurisdiction deems any provision hereof to be too broad in time, scope, or
area, it is expressly agreed that provision shall be enforced to a less
degree which the court of competent jurisdiction would find enforceable.
d. The Company may withhold from any amounts payable under this
Agreement such federal, state and local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
e. This Agreement contains the entire understanding of the Company and
the Executive with respect to the subject matter hereof.
f. Any waiver of any breach of this Agreement shall not bc construed
to be a
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continuing waiver of consent to any subsequent breach by either party
hereto.
g. In the event that either party hereto brings suit for the
collection of any damages resulting from, or the injunction of any action
constituting, a breach of any of the terms or provisions of this Agreement,
then the party found to be at fault shall pay all reasonable court costs
and attorneys' fees of the other.
h. The Executive shall not delegate the employment obligations
pursuant to this Agreement to any other person.
IN WITNESS WHEREOF, the Executive has hereunto set his hand, and the
Company has caused these presents to be executed in its name on its behalf, all
as of the day and year first-above written.
EXECUTIVE XXXX X. XXXXXXX HOTELS, INC.
/s/ Xxxxxxx X. Xxxx 1-29-00 /s/ Xxxx X. Xxxxxxx
---------------------------------------- ----------------------------------
XXXX XXXX XXXX X. XXXXXXX
Chairman of the Board and CEO
Witness: /s/ Xxxx Xxxxxxx 01/29/00 Witness: /s/ Xxxx Xxxxxx
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Notary Public
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