EXHIBIT 10.2.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is dated as of September
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27, 1996, between Signature Resorts, Inc., a Maryland corporation (the
"Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Executive").
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1. Employment. The Company hereby agrees to employ the Executive, and
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the Executive hereby agrees to be employed by the Company, on the terms and
conditions set forth herein.
2. Term. The employment of the Executive by the Company as provided in
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Section 1 will commence on a mutually agreeable date on or before November 18,
1996 (the "Effective Date") and will terminate at 12:01 a.m. two years after the
Effective Date (the "Expiration Date") unless automatically extended or sooner
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terminated as hereinafter provided (such period, the "Employment Period").
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Unless terminated by the Executive or the Company prior to September 1, 1998,
this Agreement shall automatically renew on the terms set forth herein for a
second two-year period. If so renewed, no later than September 1, 2000, the
Company shall notify the Executive with written notice as to whether the Company
intends to further renew or extend the Agreement (including proposals for such
further renewal which the Executive may accept, reject or negotiate, at his
discretion).
3. Position, Duties and Responsibilities.
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(a) Position. The Executive hereby agrees to serve as Executive Vice
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President and Chief Financial Officer of the Company. The Executive shall
devote his best efforts and substantially full business time and attention to
the performance of services to the Company in his capacity as an officer thereof
and as may reasonably be requested by the Board. The Company shall retain full
direction and control of the means and methods by which the Executive performs
his services thereto. Both the Executive and the Company agree that the nature
and scope of the Executive's responsibility and authority will be consistent
with being the Executive Vice President and Chief Financial Officer of a public
company, as described in more detail herein. The Executive shall report
directly to Messrs. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(the "Principals"), and the Principals shall be generally available to the
Executive on a day to day basis. In no order of priority, the following are the
responsibilities and duties that the Executive would have:
1. To work closely with the Company's executive level senior-most
officers and the Principals to structure strategic initiatives,
including acquisitions, and to analyze the financial impact of such
initiatives; and to participate actively in the negotiations thereof
and oversee the completion of such initiatives.
2. To maintain a current understanding of the Company's progress in
achieving stated financial goals and objectives (i.e., internal and
Wall ----
Street estimates) relative to applicable Company projections and
budgets prepared by others.
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3. To serve as the primary point of contact for investor relations and
investment banking, research and analyst communications; to
participate in investor and analyst meetings and conferences; to
coordinate press releases, quarterly and annual filings; and to
coordinate the design and preparation of the Company's annual
shareholders' report; and to be involved in such other similar
matters with the assistance of Company counsel.
4. To analyze and structure the Company's capital base, including,
without limitation, coordinating and implementing equity and debt
initiatives such as follow-on offerings, lines of credit and
securitization programs; and, generally, to manage the Company's
commercial banking relationships and lines of credit.
5. To develop and oversee cash management policies.
6. To oversee the Company's policies and procedures respecting employee
purchases and sales of the Company's stock and the exercise of its
stock options.
7. To oversee the Company's treasury function, with the assistance of
appropriate personnel.
8. To oversee the Company's insurance and risk management program, with
the assistance of appropriate personnel.
9. To carry out such other customary duties and responsibilities of an
executive vice president and chief financial officer of a public
company.
The Company recognizes that to accomplish these responsibilities, the Executive
will require full cooperation and extensive interaction with the Principals, the
Company's controller and accounting department, as well as the use of reasonably
necessary staff resources dedicated exclusively to assisting the Executive in
discharging his duties.
(b) Place of Employment. During the term of this Agreement, the
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Executive shall perform the services required by this Agreement at the Company's
place of business in the San Francisco Bay area; provided, however, that the
Company will require the Executive to travel extensively to other locations on
the Company's business.
(c) Other Activities. Except with the prior written approval of the
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Board (which the Board may grant or withhold in its sole and absolute
discretion), the Executive, during the Employment Period, will not (i) accept
any other employment, (ii) serve on the board of directors or similar body of
any other business entity (except as otherwise set forth below), or (iii)
engage, directly or indirectly, in any other business activity (whether or not
pursued for pecuniary advantage) that is or may be competitive with, or that
might place him in a competing position to, that of the Company or any of its
affiliates. Notwithstanding the foregoing, the Company agrees that the
Executive (or affiliates of the Executive) shall be permitted (i) to undertake
the activities set forth in Section 8 and (ii) to make any other passive
personal
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investment that is not in a business activity that is directly or indirectly
competitive with the Company.
4. Compensation and Related Matters.
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(a) Salary. During the Employment Period, the Company shall pay the
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Executive a salary of not less than $280,000 during the first full year and at
such salary as determined by the Compensation Committee of the Board during the
second and subsequent years of the Executive's employment with the Company, but
in no case less than $280,000 per year. All salary is to be paid consistent
with the standard payroll practices of the Company (e.g., timing of payments and
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standard employee deductions, such as income tax withholdings, social security,
etc.). The Executive's performance and salary shall be subject to review at the
end of each fiscal year and increase consistent with the standard practices of
the Company.
(b) Business Expenses. The Company shall reimburse the Executive in
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connection with the conduct of the Company's business upon presentation of
sufficient evidence of such expenditures consistent with the Company's policies
as in place from time to time. Such benefits are all subject to change in the
Company's sole and absolute discretion. Currently, those benefits include a
Company paid participation for the Executive only in (i) an HMO (with the right
to upgrade to a PPO health provider at the Executive's expense in accordance
with the terms of our agreement with our current carrier, Blue Shield) and (ii)
an HMO dental provider (with the right to upgrade to a PPO dental provider at
the Executive's expense in accordance with the terms of our agreement with our
current carrier). There is a waiting period on the effectiveness of the
Executive's medical coverage which may be as long as 90 days after commencement
of the Executive's employment with the Company. During this waiting period, the
Company's health plan would not cover the Executive. However, the Company has
agreed to cover the Executive's COBRA costs to maintain the Executive's current
health coverage for this three month waiting period, subject to a maximum
contribution by the Company each month equal to what the Company would have paid
on behalf of the Executive for health coverage had he been an employee of the
Company eligible for the Company's plan during this three month period. In
addition, the Executive will be able to participate at the Executive's own
expense in any life and disability policies available for purchase, in
accordance with the terms of the Company's plan with its carrier, and in the
Company 401K retirement plan. The cost of any medical or dental or other
insurance benefits selected by the Executive in excess of the benefits provided
by the Company for either the Executive or the Executive's dependents will be
paid by the Executive personally from payroll deductions.
(c) Other Benefits. The Executive shall be entitled to participate in
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or receive health, welfare, life insurance, long-term disability insurance,
bonus plan and similar benefits as the Company provides generally from time to
time to its executives. The Executive shall have the right to participate at
Company expense in industry related trade groups, conventions, etc. in
furtherance of enhancing the Executive's visibility in and knowledge of the
time-share and resort industry. The Company acknowledges that, subject to and
conditioned upon the approval of the Board, within a reasonable time following
the execution of this Agreement, it will execute an option agreement
substantially in the form attached as Exhibit A hereto (the "Option Agreement")
and will institute and grant the Executive benefits under the equity
participation plan substantially
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in the form attached as Exhibit B hereto (the "Option Plan"). In the event that
the Board and the shareholders of the Company later approve amendments to the
Company's Stock Option Plan which would expand the number of shares included
therein, the Board would consider the Executive for additional grants of options
under the Company's Stock Option Plan based on the Executive's contributions to
the Company on the same basis that other senior executives (including, without
limitation, the Principals and other the Executive Vice President of the
Company) are so considered by the Board for such subsequent option grants.
Except as otherwise set forth in this Section 4 and except with respect to the
Company's obligations under this Agreement with respect to the Option Agreement
and the Option Plan, nothing herein is intended, or shall be construed to
require the Company to institute or continue any, or any particular, plan or
benefits.
(d) Merit Bonus. The Principals, or a relevant committee thereof, or
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the Compensation Committee of the Board shall establish, monitor and oversee an
incentive bonus program for the Executive which has definitive, specific and
reasonably achievable hurdles and reasonably achievable performance standards
which, if achieved in the aggregate, and subject to the performance of the
Company as a whole specified therein, would result in the Executive receiving
bonus compensation of 100% of the Executive's then annual base salary paid to
the Executive during the applicable fiscal year, which bonus compensation would
be prorated for the first fiscal year of the Executive's employment ending on
December 31, 1996. Such incentive program would provide for specific partial
bonus achievement hurdles in connection with this program as well. Each
subsequent year thereafter, the Principals or the Compensation Committee of the
Board will monitor and review this program as necessary to reflect the
Executive's contributions to the Company. The award of the merit bonus will be
based primarily on two criteria. The first will be the nature of the
Executive's performance in excess of the high level of reasonably achievable
performance which the Company requires of all of its employees, including the
quality and level of the Executive's performance; the achievement by the
Executive of the reasonably achievable performance standards specified in the
Executive's incentive bonus compensation plan; and the value which the Executive
has contributed to or created for the Company. The second will be based on the
overall profitability and level of increased profitability (e.g., reduced cost
of funds, off-balance sheet financing, and other similar issues) in each of the
Company's activities in which the Executive has either bottom-line
responsibility or in which the Executive has been materially involved, as well
as the overall financial performance of the Company and its publicly-traded
stock.
(e) Fringe Benefits. The Executive will be entitled to fringe
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benefits as may be determined or granted from time-to-time by the Board.
(f) Vacation. The Executive shall be entitled to four vacation weeks
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(20 days) in each calendar year on a pro-rated basis. The Executive will be
entitled to all Company holidays.
(g) Performance Reviews. At the end of each fiscal year, the Company
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(through the Principals or the Compensation Committee of the Board) will review
the Executive's job performance and will provide the Executive a written review
of the Executive's job performance during the prior year and implement any
Company determined revisions to the
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Executive's base salary, the Executive's merit bonus, the Executive's
prospective incentive compensation package (including the Executive's
participation in the Option Plan), the Executive's title and/or the Executive's
responsibility at the Company; provided, however, that neither of Executive's
title, base salary, merit bonus potential, position or responsibilities at the
Company shall be reduced.
(h) Moving Expenses. The Company agrees to reimburse the Executive
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for his reasonable and necessary moving expenses incurred in moving his
personal, family and household belongings from San Antonio, Texas to the San
Francisco Bay area. Such reimbursements will not include costs incurred by the
Executive in either selling his current residence, or purchasing a new residence
and will not include any brokerage, closing, or incremental gains or losses
incurred by Executive in selling and/or purchasing such residential real estate.
The Company will reimburse the Executive all reasonable costs incurred in making
up to two trips to the San Francisco area with his family to locate a new
residence.
5. Termination. The Executive's employment hereunder shall be, or may
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be, as the case may be, terminated under the following circumstances:
(a) Death. The Executive's employment hereunder shall terminate upon
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his death.
(b) Disability. The Executive's employment hereunder shall terminate
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on the Executive's physical or mental disability or infirmity which, in the
opinion of a competent physician selected by the Board, renders the Executive
unable to perform his duties under this Agreement for more than 120 days during
any 180-day period.
(c) Cause. The Company may terminate the Executive's employment
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hereunder for "Cause." Cause shall mean (i) Employee's material breach of any
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of the terms of this Agreement, (ii) his conviction of a crime involving moral
turpitude or constituting a felony under the laws of any state, the District of
Columbia or of the United States, or (iii) his gross negligence, willful
misconduct or fraud in the performance of his duties hereunder.
(d) Employment-At-Will/Termination for Any Reason. Notwithstanding
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the term of this Agreement having a duration of two years and Sections 2 and 4
hereof referring to extensions of this Agreement and the annual salary to be
paid to the Executive during his employment with the Company, nothing in this
Agreement should be construed as to confer any right of the Executive to be
employed by the Company for a fixed or definite term. Subject to Section 6
hereof, the Executive hereby agrees that the Company may dismiss him under this
Section 5(d) without regard (i) to any general or specific policies (whether
written or oral) of the Company relating to the employment or termination of its
employees, or (ii) to any statements made to the Executive, whether made orally
or contained in any document, pertaining to the Executive's relationship with
the Company. Notwithstanding anything to the contrary contained herein,
including Sections 2 and 4, the Executive's employment with the Company is not
for any specified term, is at will and may be terminated by the Company at any
time by delivery of a notice of termination to the Executive, for any reason,
with or without cause, without liability except with respect to the payments
provided for by Section 6.
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(e) Voluntary Resignation. The Executive may voluntarily resign his
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position and terminate his employment with the Company at any time by delivery
of a written notice of resignation to the Company (the "Notice of Resignation").
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The Notice of Resignation shall set forth the date such resignation shall become
effective (the "Date of Resignation"), which date shall, in any event, be at
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least ten (10) days and no more than thirty (30) days from the date the Notice
of Resignation is delivered to the Company. At its option, the Company may
reduce such notice period to any length, upon thirty (30) days written notice to
the Executive.
(f) Notice. Any termination of the Executive's employment by the
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Company shall be communicated by written Notice of Termination to the Executive.
For purposes of this Agreement, a "Notice of Termination" shall mean a notice
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that shall indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated.
(g) "Date of Termination" shall mean (i) if the Executive's employment
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is terminated by his death, the date of his death, (ii) if the Executive's
employment is terminated by reason of his disability, the date of the opinion of
the physician referred to in Section 5(b), above, (iii) if the Executive's
employment is terminated by the Company for Cause pursuant to subsection 5(c)
above, or without Cause by the Company pursuant to subsection 5(d) above, the
date specified in the Notice of Termination and (iv) if the Executive
voluntarily resigns pursuant to subsection 5(e) above, the date of the Notice of
Resignation.
(h) Termination Obligations.
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(i) The Executive hereby acknowledges and agrees that all
personal property and equipment furnished to or prepared by the Executive
in the course of or incident to his employment, belongs to the Company and
shall be promptly returned to the Company upon termination of the
Employment Period. "Personal property" includes, without limitation, all
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books, manuals, records, reports, notes, contracts, lists, blueprints, and
other documents, or materials, or copies thereof (including computer
files), and all other proprietary information relating to the business of
the Company. Following termination, the Executive will not retain any
written or other tangible material containing any proprietary information
of the Company.
(ii) Upon termination of the Employment Period, the Executive
shall be deemed to have resigned from all offices and directorships then
held with the Company or any affiliate.
(iii) The representations and warranties contained herein and the
Executive's obligations under Sections 5(h), 7, 8, 9 and 15 through 18
shall survive termination of the Employment Period and the expiration of
this Agreement.
(i) Release. In exchange for the Company entering into the Agreement,
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the Executive agrees that, at the time of his resignation or termination from
the Company, he will execute a release acceptable to the Company of all
liability of the Company and its officers,
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shareholders, employees and directors to the Executive in connection with or
arising out of his employment with the Company, except with respect to any then-
vested rights under the Company's Option Plan and except with respect to any
Severance Payments which may be payable to him under the terms of the Agreement.
Nothing herein shall modify Employee's mediation and other rights under this
Agreement.
6. Compensation Upon Termination.
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(a) Death. If the Executive's employment shall be terminated pursuant
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to Section 5(a), the Company shall pay the Executive monthly his base salary
payable pursuant to Section 4(a) and one-twelfth of any bonus payable pursuant
to Section 4(d) at the most recent annual amount received, or entitled to be
received, by the Executive (the "Severance Payment") for a period of two years
following the Date of Termination. At the Executive's own expense, the
Executive's dependents shall also be entitled to any continuation of health
insurance coverage rights under any applicable law.
(b) Disability. If the Executive's employment shall be terminated by
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reason of disability pursuant to Section 5(c), the Executive shall receive the
Severance Payment for the lesser of two years or the duration of such
disability; provided that payments so made to the Executive during the
disability shall be reduced by the sum of the amounts, if any, payable to the
Executive at or prior to the time of any such payment under any disability
benefit plan of the Company. At the Executive's own expense, the Executive and
his dependents shall also be entitled to any continuation of health insurance
coverage rights under any applicable law.
(c) Cause. If the Executive's employment shall be terminated for
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Cause pursuant to Section 5(c) hereof, the Company shall pay the Executive his
salary and any bonus then payable pursuant to Section 4(d)) through the Date of
Termination. At the Executive's own expense, the Executive and his dependents
shall also be entitled to any continuation of health insurance coverage rights
under any applicable law.
(d) Other Terminations by the Company. If the Company shall terminate
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the Executive's employment without cause pursuant to Section 5(d) hereof, the
Company shall pay the Executive the Severance Payment for a period of two years
from the Date of Termination. The Executive and his dependents shall also be
entitled to any continuation of health insurance coverage rights under any
applicable law.
(e) Voluntary Resignation. If the Executive terminates his employment
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with the Company pursuant to Section 5(g) hereof for "Good Cause", the Company
shall pay the Executive the Severance Payment for a period of two years from the
Date of Resignation. If the Executive terminates his employment with the
Company pursuant to Section 5(g) hereof without "Good Cause," the Company shall
have no obligation to compensate the Executive following the Date of
Resignation. In any event, at the Executive's own expense, the Executive and
his dependents shall be entitled to any continuation of health insurance
coverage rights under any applicable law.
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For purposes of this Agreement, "Good Cause" shall mean, without the
express written consent of the Executive, the occurrence of any of the following
events unless such events are substantially corrected within 30 days following
written notification by the Executive to the Company that he intends to
terminate his employment hereunder for one of the reasons set forth below:
(i) Any material alteration, reduction or diminution in the duties,
responsibilities or compensation of the Executive or required
relocation of the Executive from the Company's San Francisco Bay
area office;
(ii) a material breach by the Company of any provision of this
Agreement; and
(iii) the occurrence of a "Change in Control."
As used in this Agreement, "Change of Control" means the occurrence of
any of the following: (i) the adoption of a plan relating to the liquidation or
dissolution of the Company, (ii) the consummation of any transaction (including,
without limitation, any merger or consolidation) the result of which is that any
person or group, other than any of ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ or their affiliates (the "Principals"), becomes the "beneficial owner"
(as such term is defined in Rule 13d-3 and Rule 13d-5 under the Securities
Exchange Act of 1934), directly or indirectly, of more than 50% of the total
voting power of the total outstanding voting stock of the Company on a fully
diluted basis or (iii) the consummation of the first transaction (including,
without limitation, any merger or consolidation) the result of which is that any
person or group, other than the Principals, becomes the beneficial owner (as
defined above), directly or indirectly, of more than 50% of the total voting
power of the total outstanding voting stock of the Company.
The Executive understands that any voluntary resignation by him as a
result of any personal or family reasons not otherwise set forth in this Section
6(e) shall not constitute "Good Cause."
(f) The Company will be entitled to offset and reduce each month the
amount of the monthly Severance Payment otherwise payable to the Executive
hereunder by seventy-five percent (75%) of the amount of the Executive's prior
month's earnings (if any) from post-Company employment (including both salary,
bonus and other cash or cash equivalent compensation) at a subsequent employer
or in connection with any consulting practice or other self-employment or
venture founded by the Executive.
(g) In the event of any Termination pursuant to Section 5, the
Executive shall be entitled to retain any and all options to purchase capital
stock of the Company granted to the Executive pursuant to the terms and
conditions of the Option Agreement attached as Exhibit A hereto that have vested
as of the date of such Termination.
(h) Any Severance Payment made pursuant to this Section 6 shall be
payable in equal monthly installments over the required duration set forth in
Sections 6(a) through 6(e).
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(i) The continuing obligation of the Company to make the Severance
Payment to the Executive is expressly conditioned upon the Executive complying
and continuing to comply with his obligations and covenants under Sections 7 and
8 of this Agreement following termination of employment with the Company.
7. Confidentiality and Non-Solicitation Covenants.
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(a) Confidentiality. In addition to the agreements set forth in
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Section 5(h)(i), the Executive hereby agrees that the Executive will not, during
the Employment Period or at any time thereafter directly or indirectly disclose
or make available to any person, firm, corporation, association or other entity
for any reason or purpose whatsoever, any Confidential Information (as defined
below). The Executive agrees that, upon termination of his employment with the
Company, all Confidential Information in his possession that is in written or
other tangible form (together with all copies or duplicates thereof, including
computer files) shall be returned to the Company and shall not be retained by
the Executive or furnished to any third party, in any form except as provided
herein; provided, however, that the Executive shall not be obligated to treat as
confidential, or return to the Company copies of any Confidential Information
that (i) was publicly known at the time of disclosure to the Executive, (ii)
becomes publicly known or available thereafter other than by any means in
violation of this Agreement or any other duty owed to the Company by any person
or entity or (iii) is lawfully disclosed to the Executive by a third party. As
used in this Agreement the term "Confidential Information" means: information
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disclosed to the Executive or known by the Executive as a consequence of or
through his relationship with the Company, about the owners, customers,
employees, business methods, public relations methods, organization, procedures
or finances, including, without limitation, information of or relating to owner
or customer lists of the Company and its affiliates.
(b) Non-Solicitation. In addition, the Executive hereby agrees that
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during the Employment Period and at all times thereafter, regardless of the
reason or circumstances of termination of employment with the Company, the
Executive will not, either on his own account or jointly with or as a manager,
agent, officer, employee, consultant, partner, joint venturer, owner or
shareholder or otherwise on behalf of any other person, firm or corporation, (i)
carry on or be engaged or interested directly or indirectly in, or solicit, the
manufacture or sale of goods or provision of services to any person, firm or
corporation which, at any time during the Employment Period has been or is a
customer of or in the habit of dealing with the Company in its business, (ii)
endeavor directly or indirectly to canvas or solicit in competition with Company
or to interfere with the supply of orders for goods or services from or by any
person, firm or corporation which during the Employment Period has been or is a
supplier of goods or services to Company or (iii) directly or indirectly solicit
or attempt to solicit away from Company any of its officers or employees or
offer employment to any person who, on or during the 6 months immediately
preceding the date of such solicitation or offer, is or was an officer or
employee of Company.
8. Covenant Not to Compete.
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(a) The Executive agrees that during the Employment Period he will
devote substantially full-time to the business of the Company and not engage in
any competitive
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businesses. Subject to such full-time requirement and the restrictions set forth
below in this Section 8 and Section 3(c) above, the Executive shall be permitted
to continue his existing business investments and activities which the Executive
was involved in prior to his joining the Company as detailed on Exhibit "1"
attached hereto and may pursue additional business investments; provided that
the Executive not serve as officer of any public company resulting from such
business investments, except with the prior written approval of the Board (which
the Board may grant or withhold in its sole and absolute discretion). The
Executive agrees that he shall not (i) invest in, manage, consult or participate
in any way in any other timeshare business (in either an active or passive
manner), (ii) participate in or advise any business wherein timeshare is a
relevant business segment or (iii) act for or on behalf of any business that
intends to enter or participate in the timeshare business, in each case unless
the independent members of the Company's Board of Directors determine that such
action is in the best interest of the Company. Notwithstanding the foregoing,
the Executive may purchase stock as a stockholder in any publicly traded
company, including any company which is involved in the timeshare business;
provided that the Executive does not own (together or separately or through his
affiliates) more than 5% of any company (other than the Company) in the
timeshare business. In addition, the Executive shall not invest (directly or
indirectly) in any timeshare property in the hospitality business (including any
condominium project) or any property where the business plan therefor includes
an intention to convert the property to timeshare, unless the independent
members of the Company's Board of Directors determine that such an investment is
in the best interest of the Company.
(b) The provisions of this Section 8 shall survive for two years
following any termination of employment, regardless of whether the termination
is for "Good Cause" or otherwise.
9. Injunctive Relief and Enforcement. In the event of breach by the
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Executive of the terms of Sections 5(h)(i), 7 or 8, and only following mediation
or attempted mediation as set forth in Section 16 below (unless the Company is
suffering irreparable injury, in which case Section 16 will not prevent the
Company from seeking injunctive relief against the Executive in any court or
forum), the Company shall be entitled to institute legal proceedings to enforce
the specific performance of this Agreement by the Executive and to enjoin the
Executive from any further violation of Sections 5(h)(i), 7 or 8 and to exercise
such remedies cumulatively or in conjunction with all other rights and remedies
provided by law and not otherwise limited by this Agreement. The Executive
acknowledges, however, that the remedies at law for any breach by him of the
provisions of Sections 5(h)(i), 7 or 8 may be inadequate. In addition, in the
event the agreements set forth in Sections 5(h)(i), 7 or 8 shall be determined
by any court of competent jurisdiction to be unenforceable by reason of
extending for too great a period of time or over too great a geographical area
or by reason of being too extensive in any other respect, each such agreement
shall be interpreted to extend over the maximum period of time for which it may
be enforceable and to the maximum extent in all other respects as to which it
may be enforceable, and enforced as so interpreted, all as determined by such
court in such action.
10. Notice. For the purposes of this Agreement, notices, demands and all
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other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when personally delivered when
transmitted by telecopy with receipt confirmed,
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or one day after delivery to an overnight air courier guaranteeing next day
delivery, addressed as follows:
If to the Executive: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company: Signature Resorts, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
With a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇., Esq.
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
11. Severability. The invalidity or unenforceability of any provision or
------------
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect; provided, however, that if any one or more of the terms contained in
Sections 5(h), 7 or 8 hereto shall for any reason be held to be excessively
broad with regard to time, duration, geographic scope or activity, that term
shall not be deleted but shall be reformed and constructed in a manner to enable
it to be enforced to the extent compatible with applicable law.
12. Assignment. This Agreement may not be assigned by the Executive, but
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may be assigned by the Company to any successor to its business and will inure
to the benefit and be binding upon any such successor.
13. Counterparts. This Agreement may be executed in several counterparts,
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each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
14. Headings. The headings contained herein are for reference purposes
--------
only and shall not in any way affect the meaning or interpretation of this
Agreement.
15. Choice of Law. This Agreement shall be construed, interpreted and the
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rights of the parties determined in accordance with the laws of the State of
Maryland (without reference to the choice of law provisions of Maryland), except
with respect to matters of law concerning the internal corporate affairs of any
corporate entity which is a party to or the subject of this Agreement, and as to
those matters the law of the jurisdiction under which the respective entity
derives its powers shall govern.
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16. Mediation. Subject to any irreparable injury being suffered by the
---------
Company giving rise to the right of the Company to seek injunctive relief
against the Executive pursuant to Section 9 hereof, in the event that there
shall be a dispute among the parties arising out of or relating to this
Agreement, or the breach thereof, the parties agree that such dispute shall be
resolved by final and binding mediation in Los Angeles, California, before a
mediator and on terms and conditions mutually acceptable to the parties;
provided, however, that if the parties cannot agree on the terms and conditions
of such mediation, such terms and conditions shall be established by the
mediator. Any award issued as a result of such mediation shall be final and
binding between the parties thereto, and shall be enforceable by any court
having jurisdiction over the party against whom enforcement is sought. The fees
and expenses relating to such mediation (with the exception of the Executive's
attorneys' fees, if any) or any action to enforce a mediation award shall be
paid by the Company.
17. LIMITATION ON LIABILITIES. IF EITHER THE EXECUTIVE OR THE COMPANY IS
-------------------------
AWARDED ANY DAMAGES AS COMPENSATION FOR ANY BREACH OR ACTION RELATED TO THIS
AGREEMENT, A BREACH OF ANY COVENANT CONTAINED IN THIS AGREEMENT (WHETHER EXPRESS
OR IMPLIED BY EITHER LAW OR FACT), OR ANY OTHER CAUSE OF ACTION BASED IN WHOLE
OR IN PART ON ANY BREACH OF ANY PROVISION OF THIS AGREEMENT, SUCH DAMAGES SHALL
BE LIMITED TO CONTRACTUAL DAMAGES AND SHALL EXCLUDE (I) PUNITIVE DAMAGES, AND
(II) CONSEQUENTIAL AND/OR INCIDENTAL DAMAGES (E.G., LOST PROFITS AND OTHER
----
INDIRECT OR SPECULATIVE DAMAGES). THE MAXIMUM AMOUNT OF DAMAGES THAT THE
EXECUTIVE MAY RECOVER FOR ANY REASON SHALL BE THE AMOUNT EQUAL TO ALL AMOUNTS
OWED (BUT NOT YET PAID) TO THE EXECUTIVE PURSUANT TO THIS AGREEMENT THROUGH ITS
NATURAL TERM OR THROUGH ANY SEVERANCE PERIOD, PLUS INTEREST ON ANY DELAYED
PAYMENT AT THE MAXIMUM RATE PER ANNUM ALLOWABLE BY APPLICABLE LAW FROM AND AFTER
THE DATE(S) THAT SUCH PAYMENTS WERE DUE.
18. WAIVER OF JURY TRIAL. TO THE EXTENT APPLICABLE, EACH OF THE PARTIES
--------------------
TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR
ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
19. Entire Agreement. This Agreement contains the entire agreement and
----------------
understanding between the Company and the Executive with respect to the
employment of the Executive by the Company as contemplated hereby, and no
representations, promises, agreements or understandings, written or oral, not
herein contained shall be of any force or effect. This Agreement shall not be
changed unless in writing and signed by both the Executive and the Board of
Directors of the Company.
20. The Executive's Acknowledgment. The Executive acknowledges (a) that
------------------------------
he has had the opportunity to consult with independent counsel of his own choice
concerning this
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Agreement, and (b) that he has read and understands the Agreement, is fully
aware of its legal effect, and has entered into it freely based on his own
judgment.
IN WITNESS WHEREOF, the parties have executed this Employment
Agreement as of the date and year first above written.
SIGNATURE RESORTS, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Operating Officer
EXECUTIVE
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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