Exhibit 10.3
U.S. FRANCHISE SYSTEMS, INC.
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "AGREEMENT"), is made as of June 30,
2000, by and between U.S. FRANCHISE SYSTEMS, INC., a Delaware corporation having
its principal place of business in Atlanta, Georgia (the "COMPANY"); and STEVEN
ROMANIELLO, an individual resident of the State of Georgia ("EMPLOYEE"). This
Agreement shall become effective upon the Effective Date. The Company desires to
continue the employment of Employee and Employee desires to continue to be
employed by the Company, on the terms and conditions set forth in this
Agreement. Accordingly, both parties, in consideration of the mutual and
exchanged promises and agreements contained herein and of wages paid and
services rendered hereunder and other consideration the receipt and sufficiency
of which are acknowledged, hereby agree as follows:
SECTION 1. DEFINITIONS. For purposes hereof, the following terms
shall be defined as follows:
a. "Affiliate" shall mean, with respect to a specified entity, an
entity that directly, or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with, the entity specified. For
purposes of this definition, the term "control" (including the terms "controlled
by" and "under common control with") means possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
an entity, whether through ownership of voting securities, by contract, or
otherwise.
b. "Base Compensation" shall mean with respect to each calendar year,
the sum of (i) $3,000 times the number of newly executed Microtel franchise and
license agreements (the "MICROTEL FRANCHISE AGREEMENTS") in that calendar year,
up to a maximum of 110 such newly executed Microtel Franchise Agreements in any
calendar year, PLUS (ii) $2,000 times the number of newly executed Microtel
Franchise Agreements in that calendar year in excess of 110, PLUS (iii) $2,000
times the number of newly executed franchise and license agreements (excluding
Microtel Franchise Agreements) of all the Company's currently existing or
hereafter acquired or licensed brands in that calendar year.
c. "Board" or "Board of Directors" shall mean Board of Directors of the
Company.
d. "Cause" shall mean:
(i) the conviction of or plea of guilty or nolo contendere by
Employee of any felony other than a traffic-related offense;
(ii) fraud, theft, embezzlement or intentional misappropriation by
Employee of funds of the Company or the Group;
(iii) repeated neglect by Employee of his duties hereunder
(other than on account of Disability); provided, however, that Cause as
defined in this clause (iii) shall in no event mean:
(a) bad judgment or incompetence;
(b) negligence other than repeated neglect of duty or
gross negligence;
(c) dissatisfaction by the Company with Employee's
performance of his duties hereunder (other than as a result of
any of the occurrences set forth in clauses (i), (ii) or (iii)
set forth above) or a bona fide disagreement over corporate
policy;
(d) any act or omission believed by Employee in good
faith to have been in the interest of the Company (without
intent of Employee to gain therefrom, directly or indirectly,
a profit to which Employee was not legally entitled), unless
such act or omission is in contravention of a lawful and
reasonable direction of the Company's Board of Directors;
(iv) a material breach of Employee's obligations pursuant to
this Employment Agreement.
Notwithstanding the foregoing, Employee shall not be deemed to have repeatedly
neglected his duties within the meaning of clause (iii) or materially breached
his obligations under this Employment Agreement within the meaning of clause
(iv) above unless the Company gives written notice to Employee thereof, and
Employee fails to remedy the matter within 15 days after receiving such notice.
e. "Change of Control" shall mean any one of the following events:
(i) Any "Person" (having the meaning ascribed to such term in
Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and
14(d) thereof, including a "group" within the meaning of Section
13(d)(3)) other than a member of the Investor Group acquires
"Beneficial Ownership" (within the meaning of Rule 13d-3 under the
Exchange Act) of 50% or more of the combined voting power of the
Company's then outstanding voting securities entitled to vote generally
in the election of directors ("VOTING SECURITIES"); provided, however,
that in determining whether a Change of Control has occurred, Voting
Securities which are held or acquired by (i) the Company or any of its
subsidiaries or (ii) an employee benefit plan (or a trust forming a
part thereof) maintained by the Company or any of its subsidiaries
shall not constitute a Change of Control;
(ii) Consummation of a merger, consolidation or reorganization
or approval by the Company's stockholders of a liquidation or
dissolution of the Company or the
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occurrence of a liquidation or dissolution of the Company ("BUSINESS
COMBINATION"), unless, following such Business Combination:
(a) the Persons with Beneficial Ownership of the Company,
immediately before such Business Combination, have Beneficial
Ownership of more than 25% of the combined voting power of the
then outstanding voting securities entitled to vote generally in
the election of directors of the corporation (or in the election
of a comparable governing body of any other type of entity)
resulting from such Business Combination (including, without
limitation, an entity which as a result of such transaction owns
the Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries) (the
"SURVIVING COMPANY");
(b) the individuals who were members of the Incumbent Board
immediately prior to the execution of the initial agreement
providing for such Business Combination constitute more than 50%
of the members of the board of directors (or comparable governing
body of a noncorporate entity) of the Surviving Company; and
(c) no Person (other than the Company, any of its
subsidiaries or any employee benefit plan (or any trust forming a
part thereof) maintained by the Company, the Surviving Company or
any Person who immediately prior to such Business Combination had
Beneficial Ownership of 25% or more of the then outstanding Voting
Securities) has Beneficial Ownership of 50% or more of the then
combined voting power of the Surviving Company's then outstanding
voting securities;
provided that no change of control shall be deemed to have occurred
under this subparagraph (ii) if the Investor Group shall continue to
have Beneficial Ownership of more than 25% of the then combined voting
power of the then outstanding voting securities and no other Person has
Beneficial Ownership of a greater percentage of the then combined
voting power;
(iii) Approval by the Company's stockholders of an agreement
for the assignment, sale, conveyance, transfer, lease or other
disposition (other than a transaction described in the preceding clause
(ii)) of all or substantially all of the assets of the Company to any
Person (other than a subsidiary of the Company or other entity, the
Persons with Beneficial Ownership of which are the same Persons with
Beneficial Ownership of the Company and such Beneficial Ownership is in
substantially the same proportions), or the occurrence of the same; and
(iv) The Shares (a) are held of record by less than 300
persons, (b) cease to be listed on a national securities exchange, or
(c) cease to be authorized to be quoted in an inter-dealer quotation
system of a registered national securities association.
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f. "Disability" shall be defined as the inability for a continuous
period of six months or for a total of six months in any 12 month period of
Employee to render substantial services to the Company or to perform the daily
functions required of such Employee due to accident, illness, sickness, or other
physical or mental condition, as certified to the Company by a physician
licensed to practice medicine in the State of Georgia.
g. "Effective Date" shall be the Closing Date as defined in the
Recapitalization Agreement dated June 2, 2000, among the Company, SDI, Inc.,
Meridian Associates, L.P., and HSA Properties Inc.
h. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
i. "Good Reason" means the occurrence of any one of the following
events:
(i) any material breach (which is not corrected within 30 days
following written notice from Employee to the Company specifying such
breach) by the Company of its obligations under this Agreement
(including, without limitation, (a) the refusal or failure of the
Company to pay the compensation and/or benefits due under this
Agreement, (b) any diminution (without Employee's consent), other than
an insignificant or incidental diminution, in Employee's duties,
authority, responsibilities or reporting requirements (whether or not
accompanied by a change in title), (c) the failure to elect Employee to
and continue his membership on the Board of Directors of the Company,
or (d) the involuntary relocation of Employee outside Atlanta, Georgia
or Chicago, Illinois, or
(ii) resignation by Employee at the written request of the
Company which has been authorized by the Company's Board of Directors.
j. "Group" shall mean the Company and any other Affiliate of the
Company, including any subsidiary entity; and shall also include all other
companies or entities under common management as Company even if not an
Affiliate.
k. "Investor Group" means Meridian Associates, L.P., SDI, Inc., HSA
Properties, Inc., and any and all of the lineal descendants of Nicholas J.
Pritzker, deceased, any and all trusts for their benefit or for the benefit of
any of their spouses, and any Person owned or controlled by such lineal
descendants or trusts and any Affiliate of any of the foregoing.
l. "Share" shall mean a share of common stock of the Company.
m. "Year" shall mean the twelve calendar month period commencing on the
Effective Date if the Effective Date is the first day of a given calendar month,
and as of the first day of the first calendar month immediately following if the
Effective Date is a date other than the first day of a given calendar month, and
ending on the last day of the twelfth full calendar month thereafter.
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SECTION 2. EMPLOYMENT.
a. Subject to the terms contained in this Agreement, the Company hereby
employs Employee and Employee hereby accepts such employment. Employee shall
serve as President and Chief Operating Officer of the Company and shall serve
and perform the duties, exercise the powers, and have the authority given to
Employee by the Chief Executive Officer or Board of Directors of the Company.
b. During the Term and unless otherwise agreed with the Company,
Employee shall devote his primary attention to the performance of his duties and
responsibilities on a substantially full time and exclusive basis during such
business hours and such other periods and times as may be necessary for the
proper performance of his duties. Notwithstanding any other provision to the
contrary contained in this SECTION 2 but consistent with the commitment to
perform services for the Company on substantially a full time and exclusive
basis, nothing in this SECTION 2 is intended to preclude Employee from devoting
reasonable time to (i) serving on the boards of other entities (profit or
not-for-profit), making public appearances, making speaking engagements, writing
books or articles or other similar activities and retaining all compensation
received from such activities; (ii) engaging in charitable and community
activities; and (iii) managing his own investments.
SECTION 3. TERM.
The term of Employee's employment hereunder (the "TERM") shall commence
on the Effective Date and unless earlier terminated as provided in SECTION 5 of
this Agreement, Employee's employment hereunder shall continue for a period of
seven years from the Effective Date.
SECTION 4. COMPENSATION. During the Term, the Company shall provide
to Employee the following:
a. Employee shall be entitled to receive cash compensation each
calendar year equal to the Base Compensation accrued during the Term. The
Company shall pay Employee an annual draw at a rate of $110,000 per year,
payable in regular installments in accordance with the Company's general payroll
practices for salaried employees ("BI-MONTHLY DRAW"), against the Base
Compensation accrued for such calendar year. If the Base Compensation accrued
and unpaid as of the end of a given calendar quarter is greater than the
aggregate Bi-Monthly Draws paid from the beginning of that year through the end
of such quarter, then the Company shall pay Employee an amount equal to such
excess in a lump sum payment within 30 days after the end of such quarter.
Within 45 days of the end of each calendar year, the Company shall deliver to
Employee a schedule setting forth its determination of the Base Compensation for
such year.
b. Employee shall be eligible for participation in all employee welfare
and benefit plans, programs and arrangements of the Company now or hereafter
made generally available to all senior executives of the Company, as such plans,
programs and arrangements may be in effect from time to time (including, without
limitation, each retirement plan, supplemental and excess retirement
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plans, annual and long-term incentive compensation plans, group life insurance,
accident and death insurance, medical and dental insurance, sick leave, pension
plans and disability plans). Without limiting the generality of the foregoing,
the Company will continue the split dollar life insurance and disability
insurance benefits provided the Employee as of the date hereof; premiums paid by
the Company for those benefits shall not be refundable by the Employee following
termination of his employment.
c. Prompt reimbursement of all out-of-pocket expenses properly incurred
by Employee in the performance of his duties and as shall properly be incurred
by him and vouched for in connection with the Company's business.
d. Subject to stockholder approval of the requisite amendment to the
Amended and Restated 1996 Stock Option Plan, Employee shall be granted on the
Effective Date two hundred fifty thousand (250,000) options ("OPTIONS") to
purchase shares of Class A Common Stock of the Company ("SHARES"). The per share
exercise price for the Shares to be issued pursuant to the exercise of the
Options ("OPTION SHARES") shall be the "Initial Conversion Price" established
for the Company's Series B 6.0% Cumulative Convertible/Exchangeable Preferred
Stock. The Options shall become vested and exercisable with respect to
one-seventh (1/7) of the Option Shares on each anniversary of the Effective
Date. Notwithstanding the foregoing, the Options shall be vested and exercisable
with respect to all Option Shares upon the termination of Employee's employment
by the Company other than for Cause or by Executive for Good Reason, or upon a
Change of Control.
e. The Company will afford Employee a one-time opportunity to purchase
up to 250,000 newly issued shares of Class A Common Stock within 270 days after
the Effective Date at a price equal to the market price at the close of business
on the date the Employee gives notice of his election to make such purchase. The
closing of such purchase will take place on the first business day following the
Employee's notice of election to make such purchase.
SECTION 5. TERMINATION.
Notwithstanding anything contained herein to the contrary, this
Agreement may be terminated at any time by either party in accordance with the
following terms:
a. DEATH. In the event of Employee's death, this Agreement shall
terminate immediately, provided, however, the Company shall be obligated to pay
within 30 days after Employee's death to Employee's family or estate a lump sum
payment equal to the Base Compensation as determined in SECTION 4(a) actually
earned or accrued as of the date of Employee's death, and the Company shall for
a period of 12 months from the date of Employee's death pay to Employee's
surviving spouse and dependents cash compensation equal to Employee's Base
Compensation earned with respect to the calendar year preceding the date of
Employee's death, and continue for the benefit of Employee's surviving spouse
and dependents health insurance and other employee welfare and benefit plans,
programs and arrangements in effect at such time (if available under the plans).
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b. DISABILITY. In the event the employment of Employee is interrupted
due to the Disability of Employee, the benefits payable to Employee shall be
continued by the Company for a period of six full calendar months from the date
of last regular employment. Should such Disability continue thereafter, no
additional Base Compensation, fringe benefits, or other benefits shall be paid
to Employee, and the Company shall have the right to terminate Employee's
employment under this Agreement upon written notice to Employee. During the
period of his Disability (including any period after the date of termination),
Employee shall be entitled to continued participation for himself, his spouse
and his dependents Employee's benefits under the Company's health and welfare
plans to the extent permitted under the plans, and all vested rights which
Employee may have shall remain in full force and effect. Upon request, Employee
shall submit to tests and examination by a physician on behalf of the Company.
In the event of disagreement of the two physicians consulted by Employee and the
Company, the two shall select a third physician whose determination shall be
deemed conclusive.
c. TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. If Company terminates
Employee's employment hereunder without Cause or Employee resigns for Good
Reason, Company shall be obligated to pay all fringe benefits, and the Base
Compensation as determined in SECTION 4(a) accrued as of the date of termination
and shall pay Employee within three days after termination of employment a
single lump sum amount equal to the Base Compensation as determined in SECTION
4(a) with respect to the calendar year preceding such termination of employment.
The Company shall continue to pay Employee's health insurance and other employee
welfare benefits for one year following the effective date of termination of
employment. Any Base Compensation shall accrue through the date of termination.
During the Term (including the one-year period after the effective date of such
termination), Employee shall be entitled to continue participation for himself,
his spouse and his dependents under the Company's health and welfare plans and
to continued participation in all of the Company's employee benefit plans other
than so-called perquisites, and all vested rights which Employee may have shall
remain in full force and effect and shall be deemed vested.
d. TERMINATION FOLLOWING CHANGE OF CONTROL. If Employee resigns for any
reason within 90 days following a Change of Control, the Company shall be
obligated to pay all fringe benefits, and the Base Compensation as determined in
SECTION 4(a) accrued as of the date of termination, and all vested rights which
Employee may have shall remain in full force and effect and shall be deemed
vested. Unless and until Employee is offered and accepts employment with an
Affiliate of the Investor Group, the Company shall pay Employee for one year
after such termination of employment a monthly amount equal to one-twelfth of
the Base Compensation as determined in SECTION 4(a) with respect to the calendar
year preceding such termination of employment. During the one-year period after
the effective date of such termination, unless and except to the extent Employee
is entitled to such benefits by reason of his employment with another employer,
Employee shall be entitled to continue participation for himself, his spouse and
his dependents under the Company's health and welfare plans and to continued
participation in all of the Company's employee benefit plans other than
so-called perquisites.
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e. RESIGNATION. In addition to Employee's right to resign for Good
Reason, Employee may resign from employment hereunder at any time by providing
Company with written notice at least three months in advance of the effective
date of the resignation. If Employee resigns without Good Reason, Company shall
pay the Base Compensation actually earned or accrued through the effective date
of resignation.
f. TERMINATION FOR CAUSE. Company may terminate Employee's employment
hereunder at any time effective immediately for Cause. If Company terminates
Employee for Cause, Company shall be obligated to pay Employee's Base
Compensation as determined in SECTION 4(a) and fringe benefits accrued only
through the effective date of termination and shall not be responsible to pay
any other amounts or provide any other benefits thereafter.
SECTION 6. OTHER PROVISIONS GOVERNING TERMINATION. Employee shall not
be required to mitigate amounts payable pursuant to SECTION 5 by seeking other
employment or otherwise. Employee's acceptance of other employment during the
Term shall not, directly or indirectly, diminish or impair the amounts payable
by the Company pursuant to SECTION 5.
SECTION 7. NON-COMPETITION:
a. During his employment with the Company and for a period of three
years following termination of such employment, unless such termination is by
the Company without Cause or by Employee for Good Reason or by the Employee for
any reason within 90 days following a Change of Control, Employee will not,
directly or indirectly, Compete (as hereinafter defined) with the Company or any
of its Affiliates. "Compete" means to work for, represent, consult for or invest
in (except owning less than one-half of one percent of a publicly traded
company) as an officer, director, employee, agent, or independent contractor,
for a person or entity engaged in the Business (as hereinafter defined) anywhere
within the Restricted Territory (as hereinafter defined).
"Business" means any of the following services:
(i) Hotel franchise system marketing, advertising and/or
promotion, including, without limitation, specific hotel franchise sales
and solicitation; or
(ii) Hotel franchise system operation, management, or maintenance,
including, without limitation, system specifications, quality control and
policing, franchisee training, system design and implementation, hotel
site selection formats, hotel space planning, standard system accounting,
advertising fund support and maintenance, reservation system support and
maintenance, and creation and maintenance of Standards, Operations or
Site Construction Manuals.
"Restricted Territory" means any area within the United States that is (i)
within a 50 mile radius surrounding the principal offices of the Company or any
of its Affiliates at the time of Employee's termination, (ii) within a 10 mile
radius surrounding any hotel licensed or franchised by the Company or any of its
Affiliates at the time of Employee's termination, (iii) within a 10 mile
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radius surrounding any hotel for which the Company or any of its Affiliates is
rendering services at the time of Employee's termination, or (iv) within a 10
mile radius surrounding the site of any proposed hotel licensed or franchised by
the Company or any of its Affiliates at the time of Employee's termination.
b. Employee acknowledges that the above covenants are a reasonable
means of protecting and preserving the Company's goodwill, its investment in
Employee and its other legitimate business interests. Employee agrees that any
breach of these covenants will result in irreparable damage and injury to the
Company and that the Company will be entitled to injunctive relief in any court
of competent jurisdiction. Employee also agrees that any such injunctive relief
shall be in addition to any damages that may be recoverable by the Company.
c. It is understood that the Employee shall not be prevented by this
Section 7, after termination of his employment, from entering into contracts or
business arrangements with any licensee or franchisee of the Company relating to
matters that do not constitute the conduct of the Business.
SECTION 8. NONDISCLOSURE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION.
a. During his employment with the Company and for a period of three
years following termination of such employment, regardless of the reason
therefor, Employee will not (except where Employee believes in good faith that
disclosure is in furtherance of his employment hereunder), directly or
indirectly, copy, reproduce, disseminate, use, exploit or disclose for the
benefit of a competitor of Company (or the Group) or for Employees' own benefit
or account, or publish and abandon to the public domain, any trade secrets of
Company and the Group (regardless of whether evidenced by a written medium of
expression), including but not limited to, those related to any of their hotel
franchise systems and pending or prospective franchisees without the prior
consent of the Company, including, without limitation:
(i) The identity of pending franchisees and franchise
applications or particular prospects, regardless of whether such
potential or pending franchisees are independently known to Employee or
obtained or obtainable from Company's data base (provided that Company
policy limits access to such data based on a need-to-know basis), and
further provided that such restriction shall lapse when any such
pending franchisee commences construction of a hotel under an executed
franchise agreement from Company or its Affiliates, or their
subfranchisors;
(ii) Trade secrets included within any of the Company's
franchise, construction, Standards, Operations or Site Construction
Manuals;
(iii) Hotel design, construction and space plan documents,
including working drawings, related to the Microtel Hotel Franchise
System owned by Company (but not the Best Hotel or Hawthorne Suites
Systems) and any other so-called "Cookie Cutter" hotel
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franchise system operated by Company in the future during the term of
this Employment Agreement; and
(iv) The specific portions of any hotel reservation system
software (constituting proprietary trade secrets) information, utilized
by the Company, that are owned by or exclusively licensed to the
Company that are not protected by federal patent or copyright
registration, now or in the future.
b. Employee acknowledges that the nondisclosure covenants contained in
this Section are a reasonable means of protecting and preserving Company's
interest in the confidentiality of this information. Employee agrees that any
breach of these covenants will result in irreparable damage and injury to
Company and that Company will be entitled to injunctive relief in any court of
competent jurisdiction. Employee also agrees that any such injunctive relief
shall be in addition to any damages that may be recoverable by Company.
SECTION 9. NONSOLICITATION.
a. In consideration for the compensation and benefits being paid and to
be paid by the Company to Employee hereunder or otherwise, Employee agrees that,
during his employment with the Company and for a period of three years following
termination of such employment for any reason, he shall not, in any manner
(other than as an employee of or a consultant to the Company or an Affiliate),
directly or indirectly:
(i) employ or seek to employ, on his own behalf or on behalf
of any other any person or entity other than the Company or any member
of the Group, any person who was employed by the Company or any member
of the Group during Employee's employment with the Company or any
person who is thereafter employed by the Company or a member of the
Group; unless such person who was employed by the Company or a member
of the Group was not employed by the Company or a member of the Group
for a period of one full year prior to such person's acceptance of
employment with Employee or any other person or entity on whose behalf
Employee is acting; or
(ii) induce or attempt to induce any licensee, franchisee or
supplier of the Company or any member of the Group to terminate its
contractual relationship with the Company or such Group member.
b. Employee agrees that, during his employment with the Company and for
a period of three years following termination of such employment for any reason,
other than by the Company without Cause or by Employee for Good Reason or by the
Employee for any reason within 90 days following a Change of Control, he shall
not, in any manner, directly or indirectly, solicit the Business or enter into
any contractual relationship for the Business of any person or entity who was a
franchisee or licensee of the Company or any Group member as of the termination
date, unless such person or entity was a franchisee or licensee of a competitor
of the Company as of the
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termination date and Employee's efforts to solicit such Business do not violate
any other covenant of this Agreement.
c. Employee acknowledges that the above covenants are a reasonable
means of protecting and preserving Company's goodwill, its investment in
Employee and its other legitimate business interests. Employee agrees that any
breach of these covenants will result in irreparable damage and injury to
Company and that Company will be entitled to injunctive relief in any court of
competent jurisdiction. Employee also agrees that any such injunctive relief
shall be in addition to any damages that may be recoverable by Company.
d. It is understood that the Employee shall not be prevented by this
Section 9, after termination of his employment, from entering into contracts or
business arrangements with any licensee or franchisee of the Company relating to
matters that do not constitute the conduct of the Business.
SECTION 10. INDEMNIFICATION. The Company shall indemnify Employee to
the maximum extent permitted by applicable law and the Company's charter and
by-laws as currently in effect (copies of which have heretofore been provided to
Employee) against all costs, charges and expenses (including, without
limitation, legal fees or the provision of counsel by the Company) incurred or
sustained by him in connection with any action, suit or proceeding to which he
may be made a party by reason of his being an officer, director or employee of
the Company or the Group whether or not such action, suit or proceeding is
brought during Employee's employment by the Company. The Company will reimburse
Employee for all reasonable legal fees and disbursements incurred by Employee in
connection with the negotiation and preparation of this Agreement and all
reasonable fees and disbursements incurred by Employee in connection with any
dispute over the enforcement by Employee of his rights under this Agreement, but
only if Employee prevails in such dispute.
SECTION 11. NOTICE. All notices or other communications hereunder shall
be in writing and shall be deemed to have been duly given (a) when delivered
personally, (b) on the business day following the day such notice or other
communication is sent by recognized overnight courier, (c) on acknowledgment of
the receipt of a facsimile of such notice or other communication, or (d) on the
fifth day following the date of deposit in the United States mail if sent first
class, postage prepaid, by registered or certified mail. The addresses for such
notices shall be as follows:
If to the Company:
U.S. Franchise Systems, Inc.
ATTN:_____________________
13 Corporate Square
Suite 250
Atlanta, Georgia 30329
Facsimile No.:____________
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If to Employee:
Steven Romaniello
_____________________
_____________________
Facsimile No.:________________
SECTION 12. MISCELLANEOUS.
a. Severability. The covenants set forth in this Agreement shall be
considered and construed as separate and independent covenants. Should any part
or provision of any covenant be held invalid, void or unenforceable in any court
of competent jurisdiction, such invalidity, voidness or unenforceability shall
not render invalid, void or unenforceable any other part or provision of this
Agreement. If any portion of this Agreement is found to be invalid or
unenforceable by a court of competent jurisdiction because its duration, the
territory, the definition of activities or the definition of information covered
is invalid or unreasonable in scope, the invalid or unreasonable term shall be
redefined, or a new enforceable term provided, such that the intent of Company
and Employee in agreeing to the provisions of this Agreement will not be
impaired and the provision in question shall be enforceable to the fullest
extent of the applicable laws.
b. WAIVER. The waiver by any party to this Agreement of a breach of any
of the provisions of this Agreement shall not operate or be construed as a
waiver of any other or subsequent breach.
c. GOVERNING LAW. This Agreement shall be deemed to be made in and
shall in all respects be interpreted, construed and governed by and in
accordance with the laws of the State of Georgia (without giving effect to the
conflict of law principles thereof). No provision of this Agreement or any
related documents shall be construed against, or interpreted to the disadvantage
of, any party hereto, by any court or any governmental or judicial authority by
reason of such party having or being deemed to have structured or drafted such
provision.
d. ENTIRE AGREEMENT. This Agreement is intended by the parties hereto
to be the final expression of their agreement with respect to the subject matter
hereof and this is the complete and exclusive statement of the terms of their
agreement with respect to the subject matter hereof, notwithstanding any
representations, statements or agreements to the contrary heretofore made. This
Agreement supersedes any former agreements, correspondence, or other
communication governing the same subject matter. This Agreement may be modified,
and its provisions may be waived, only by a written instrument signed by each of
the parties hereto.
e. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPANY: EMPLOYEE:
U.S. FRANCHISE SYSTEMS, INC.,
a Delaware corporation STEVEN ROMANIELLO
By: /s/ Stephen D. Aronson /s/ Steven Romaniello
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