EXHIBIT 10.8
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT between ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc., a Delaware
Corporation (the "Company"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Executive"), dated as of
the 1st day of May, 1995.
WHEREAS, the Company desires to employ the Executive, and the Executive
desires to be employed by the 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 May 10, 1995 (the
"Effective Date"), the Company agrees to and hereby does, employ the Executive
as its in-house legal counsel. The Executive hereby accepts such employment in
such capacity and agrees to discharge faithfully, diligently, and to the best of
her ability the responsibilities of that position.
2. Term. This Agreement shall commence on the Effective Date for an initial
period of three (3) years (the "Employment Term") and continuing thereafter from
year to year (a "Renewal Term") provided that either the Company or the
Executive may terminate such employment at the end of the Employment Term or any
Renewal Term by giving the other not less than six (6) months prior written
notice of such termination. The foregoing notwithstanding either the Executive
or the Company may terminate such employment ninety (90) days after the
Effective Date (the "Option Period") with two (2) weeks written notice to the
other of such termination.
3. Duties and Responsibilities.
(a) During the Employment Term, the Executive (i) shall be in charge of
overseeing on going litigation in which the Company is involved, (ii) shall be
in charge of
coordinating the Company's legal matters with outside counsel, (iii) shall
report to the Chairman and President and (iv) shall assume and perform such
further reasonable responsibilities and duties assigned to her by the
President or 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 her working time and
energy to the business and affairs of the Company and to use her best
efforts to perform the responsibilities assigned to her hereunder
faithfully and efficiently. Executive will work thirty-five (35) hours per
week on the Company's affairs and the Company agrees to allow the Executive
flexibility in her work schedule, specifically to include permitting
Executive to depart at 3:00 p.m. each day.
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 Ninety Thousand Dollars ($90,000.00) (the "Base
Salary") payable in accordance with the Company's normal payroll practices
for salaried employees. The Base Salary shall be reviewed annually and may
be increased (but not decreased) in the course of each such 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. In addition to the Base Salary, the Executive shall
be entitled, for each year of the Employment Term or any Renewal Term, to
an annual bonus ("Annual Bonus") in an amount determined by the Chairman of
the Board and President of
the Company. 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
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 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 $75,000), 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
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 her
duties hereunder and in the promotion of the business of the Company.
(f) Fringe Benefits. During the Employment Term and any Renewal Term,
the Executive shall be entitled to fringe benefits in accordance with the
policies of the Company.
(g) Vacation. The Executive shall be entitled to five (5) days of paid
vacation in 1995 and ten (10) days of paid vacation during 1996, and
fifteen (15) days of paid vacation per year thereafter, excluding weekends
or days which the Company is not open for business, which are the following
holidays: Christmas, New Year's Day, Thanksgiving and the day after,
Memorial Day, Labor Day and July 4th.
(h) Bar Dues. During the Employment Term and any Renewal Term, the
Company shall pay the Executive's Bar Association Dues to allow the
Executive to maintain her membership in the American, Missouri and
Springfield Metropolitan Bar Associations.
(i) Continuing Legal Education. During the Employment Term and any
Renewal Term, the Company shall pay for the Executive to attend the
requisite continuing legal education programs to maintain her license to
practice law.
(j) Malpractice Insurance Premium. During the Employment Term and any
Renewal Term, the Company shall pay for the Executive's Malpractice Premium
to provide the Executive with legal malpractice coverage for errors and
omissions.
(k) Stock Options. The Executive shall receive the option to purchase
shares of the Class A Common Stock of the Company as options are awarded to
the other executives of the Company.
(l) Executive's Assistant. The Company shall hire as the Executive's
Assistant, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ to be paid Twenty-Five Thousand Dollars
($25,000.00) per year. ▇▇. ▇▇▇▇▇▇ shall be entitled to paid vacation of
five (5) days during 1995, and ten (10) days per year for each year
thereafter, and health and disability insurance fully paid for by the
Company.
(m) Legal Resources. The Company shall provide the Executive with
legal publications and resources at the Executive's request, including
subscriptions to legal publications, purchase of software and books
necessary for the Executive to perform her job for the Company.
(n) Highland Springs Country Club Membership. Company shall provide
Executive, during the Employment Term and any Renewal Term, a Social
Membership to Highland Springs Country Club; however, Executive shall pay
all monthly dues and other costs associated with such membership.
5. Termination. The following provisions relate solely to termination of
the Executive's employment during the Employment Term or any Renewal Term:
(a) Death or Disability.
(i) Subject to Section 7 below, this Agreement shall terminate
automatically upon the Executive's death.
(ii) Subject to Section 7 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 her 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
"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 her
response. For purposes of this Agreement, "Cause" means (i) the conviction
of the Executive by a court of competent jurisdiction of crime involving
moral turpitude, (ii) the commission by the Executive of an
act of fraud on the Company; (iii) the misappropriation or attempted
misappropriation by the Executive of any funds or property of the Company,
or (iv) the continuing failure of the Executive to perform her obligations
under Section 2 of this Agreement thirty (30) days after having received a
written notice specifying the manner in which she is failing to perform
those obligations.
6. Notice of Termination. Any termination by the Company for Cause shall
be communicated in writing to the Executive in accordance with Section 13(b) of
this Agreement and if the termination date is other than the date of receipt,
the notice shall specify the termination date.
7. Obligations of the Company Upon Termination. The following provisions
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
the Executive's death, this Agreement shall terminate without further
obligation to the Executive's legal representatives under this Agreement
other than those salary, bonus and fringe benefit 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
of the Executive's Disability, the Executive shall be entitled to receive
the amount specified in Section 7(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 shall be terminated for
Cause, the Company shall pay the Executive her 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
shall terminate or fail to renew the Executive's employment with the
Company without cause:
(i) the Company shall pay to the Executive at the time of
termination, an amount equal to two (2) year's current Base Salary;
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(e) if the
Executive's employment had not terminated; and
(iii) until the six-month 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(d) and
3(f) of this Agreement if the Executive's employment had not been
terminated.
8. Non-Competition. At all times during the Executive's employment with
the Company and for a period of two (2) years after the Executive is no longer
employed by the Company, the Executive shall not anywhere in the United States,
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 (i) 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, and (ii) practicing law at the location of her choice.
9. Non-Solicitation of Employees and Customers. The Executive shall not
at any time during her employment hereunder and for a period of two (2) years
after the date her employment is terminated for any reason, directly or
indirectly, for herself 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.
10. Non-Disclosure. Except as expressly permitted by the Company, or in
connection with the performance of her duties hereunder, the Executive shall not
at any time during or subsequent to her 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.
11. Books and Records. All books, records and accounts relating in any
manner to the Company's customer, 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.
12. Injunction. The Executive acknowledges that if she were to breach any
of the provisions of Sections 8, 9, 10, or 11 it would result in immediate and
irreparable injury to the Company which cannot be adequately or reasonably
compensated at law. Therefore, the 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 temporary and permanent injunction, without being required to post
a
bond, enjoining and restraining a breach by the Executive, her associates, her
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.
13. 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 assume and agree to perform this
Agreement in the same manner and to the same extent as the Company would 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.
14. 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: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------- ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc.
----------------- 300 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------- ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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 lesser degree which the court
of competent jurisdiction finds 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 her 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.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ HOTELS, INC.
By
--------------------------------- --------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the Board
EXHIBIT 10.8
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT is made and entered into as of the 31st day of October,
1997, by and between ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc. (the "Company") and ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Executive").
WHEREAS, the Company and Executive previously entered into an
Employment Agreement dated as of May 1, 1995, (the "Agreement") and Company and
Executive now desire to amend the terms of the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
provisions set forth herein and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Company and
Executive hereby agree to amend the Agreement as follows:
1. Paragraph 2 - Term shall be amended in its entirety as follows:
"This Agreement shall continue for a renewal term of three
(3) years (the "Renewal Term"), commencing May 1, 1998, and
continuing thereafter from year to year, provided that either the
Company or the Executive may terminate such employment at the end
of the Renewal Term by giving the other not less than six months'
prior written notice of such termination."
2. Paragraph 3(a) - Compensation shall be amended in its entirety as
follows:
"Base salary. During the Renewal Term, the Executive shall
receive a base salary of One Hundred Thirty-five Thousand Dollars
(135,000.00) (the "Base Salary"), payable in accordance with the
Company's normal payroll practices for salaried employees. The
Base Salary shall be reviewed annually and may be increased (but
not decreased) in the course of each such 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."
3. Continuing Validity. Except as expressly modified herein, all
remaining terms and conditions of the Agreement shall remain in
full force and effect.
COMPANY
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman of the Board and
Chief Executive Officer
EXECUTIVE
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
