Exhibit 10.14b
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT by and between Xxxx X.
Xxxxxxx Hotels, Inc., a Delaware corporation (the "Company"), and Xxxxx X. Xxxxx
(the "Executive"), dated as of the 28th day of July, 1996.
W I T N E S S E T H T H A T:
WHEREAS, Executive and Company entered into an Employment Agreement dated
January 1, 1994, which expires on December 31, 1996, unless renewed by Executive
and Company (the "Employment Agreement"); and
WHEREAS, Executive and Company do not wish to renew the Employment
Agreement on its current terms and conditions, but rather to amend and restate
the terms of the Employment Agreement to be effective on January 1, 1997, for a
one (1) year term.
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 amend and restate the Employment Agreement in its entirety, to be
effective as of January 1, 1997, as follows:
1. OFFER AND ACCEPTANCE OF EMPLOYMENT. Commencing on January 1, 1997,
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(the "Effective Date"), the Company agrees to and hereby does, employ Executive
as its 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 one (1) year (the "Employment Term") and continuing thereafter from year to
year (a "Renewal Term") provided that either the Company or Executive may
terminate his employment upon forty-five (45) days written notice to the other.
2. DUTIES AND RESPONSIBILITIES.
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(a) During the Employment Term, the Executive (i) shall be in charge
of the operations and management of the Company, (ii) shall report to the
Chairman and (iii) shall assume and perform such further reasonable
responsibilities and duties assigned to him by the Chairman of the Board of
Directors. If elected or appointed, the Executive shall serve as a director
of the Company without any additional compensation.
(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
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Executive is employed by the Company:
(a) Base Salary. During the Employment Term, the Executive shall
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receive a base salary of Three Hundred Thousand Dollars ($300,000) (the
"Base Salary") payable in accordance with the Company's normal payroll
practices for salaried employees. The Base Salary shall be reviewed at the
beginning of each Renewal Term and may be increased (but not decreased) in
the course of each review. Under no circumstances shall any increase in the
Base Salary (i) limit or reduce any other obligation to the Executive under
this Agreement or (ii) be later reduced or eliminated, once effective.
(b) Annual Bonus. Executive may receive an annual bonus ("Annual
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Bonus") of an amount up to One Hundred Thousand Dollars ($100,000.00) as
determined by the Compensation Committee of the Company in accord with
criteria to be agreed upon
between the Compensation Committee and Executive unless a performance based
bonus plan has been adopted for all of the officers of the Company, in
which event the criteria of that plan shall be followed by the Compensation
Committee. Each Annual Bonus shall be determined and accrued as of the end
of the fiscal year for which the Annual Bonus is awarded and paid no later
than April 1 of the following year, unless the 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
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Annual Bonus payable as hereinabove provided, the Executive shall be
entitled to participate, during the Employment Term and any Renewal 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 and any
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Renewal Term, the Executive, and the Executive's 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 (at least $250,000),
group life (at least $250,000), accidental death and travel accident (at
least $250,000) insurance plans and programs of the Company.
(e) Expenses. During the Employment Term and any Renewal Term, the
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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 and any Renewal
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Term, the Executive shall be entitled to fringe benefits in accordance with
the policies of the Company.
(g) Vacation. During the Employment Term and any Renewal Term, the
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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
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the Executive's employment during the Employment Term or any Renewal Term:
(a) Death or Disability.
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(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, (collectively "Disability") for a
continuous period of more than twenty-six (26) weeks.
(b) Cause. The Company may terminate the Executive's employment for
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"Cause" by a majority vote of the Company's Board of Directors at a meeting
where the Executive has had an opportunity to be present and express his
response. For purposes of this Agreement, "Cause" means (i) any act or acts
of dishonesty, moral turpitude or willful misconduct, or (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.
(c) Without Cause. In accord with the provisions of Paragraph 1, the
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Company may terminate the Executive's employment at any time without cause
upon forty-five (45) days written notice.
(d) Resignation. In accord with the provisions of Paragraph 1, the
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Executive may resign his employment with the Company at any time upon
forty-five (45) days written notice.
5. NOTICE OF TERMINATION OR RESIGNATION. Any termination by the Company
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or resignation by the Executive 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
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apply only in the event the Executive is terminated during the Employment Term
or any Renewal Term:
(a) Death. If the Executive's employment is terminated by reason of
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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 least 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
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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 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, the
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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.
(d) Termination or Failure to Renew Without Cause. If the Company
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shall terminate or fail to renew the Executive's employment with the
Company without cause:
(i) the Company shall pay to the Executive Three Hundred Fifty
Thousand Dollars ($350,000.00), payable in not more than twelve (12)
monthly installments at the discretion of the Executive; and, in the
case of vested compensation previously deferred by the Executive, all
amounts of such compensation previously deferred and not yet paid by
the Company;
(ii) the Company shall, promptly upon submission by the Executive
of supporting documentation, pay or reimburse, or cause to be paid or
reimbursed, to the Executive any business related costs and expenses
paid or incurred by the Executive on or before the date of termination
which would have been payable under Section 3(f) if the Executive's
employment had not terminated; and
(iii) until the six-month or the twelve-month in the event of
medical benefits, anniversary of the Executive's termination, the
Company shall continue benefits (or equivalent coverage) to the
Executive and/or the Executive's family at least equal to those which
would have been provided to them in accordance with the plans,
programs and policies described in Sections 3(c), and 3(d) of this
Agreement if the Executive's employment had not been terminated.
(e) Resignation. If the Executive resigns his employment, the Company shall
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pay the Executive his Base Salary through the date of his resignation at
the rate in effect at the time the resignation notice is given and shall
have no further obligations to the Executive under this Agreement except as
to vested employee benefits.
7. NON-COMPETITION. At all times during Executive's employment with the
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Company and for a period of one (1) year after Executive is no longer employed
by the Company, unless the Executive resigns his employment, 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 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 of 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
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at any time during his employment hereunder and for a period of one (1) year
after the date his employment is terminated, or 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 employee of the Company, its
affiliates, or predecessors-in-interest, unless such employee or former employee
has not been employed by 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
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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
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manner to the Company's customers, suppliers, or methods of conducting business
whether prepared by the 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
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the provisions of Sections 7, 8, 9 or 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.
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(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 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: Xxxxx X. Xxxxx
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Xxxx X. Xxxxxxx Hotels, Inc.
300 Xxxx X. Xxxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
If to the Company: Xxxx X. Xxxxxxx Hotels, Inc.
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300 Xxxx X. Xxxxxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
with a copy to: Xxxxxxx X. Xxxx
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Xxxxxxxxxx & Xxxxxx, P.C.
000 Xx. Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
or to such other address as either party shall have furnished to the other
in writing on 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 provisions 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 be construed
to be a 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.
XXXX X. XXXXXXX HOTELS, INC.
________________________________ By _________________________________
XXXXX X. XXXXX Its: Chairman of the Board
