RESIGNATION AGREEMENT
This Resignation Agreement ("Agreement") is made and entered into as of the
31st day of January, 1997 by and between Amerihost Properties, Inc. (the
"Company") and Richard A. D'Onofrio ("D'Onofrio").
WHEREAS, on April 7, 1995 the Company and D'Onofrio entered into an
Employment Agreement, (the "Employment Agreement"), pursuant to which D'Onofrio
has served as the Executive Vice President of the Company;
WHEREAS, D'Onofrio has been a director of the Company since the Company's
inception in 1984 and has served as a director and officer of various
subsidiaries of the Company;
WHEREAS, effective as of the date hereof, D'Onofrio desires to resign from
his positions as an officer and director of the Company and its subsidiaries and
affiliates and D'Onofrio and the Company each desire to terminate the Employment
Agreement and settle fully and finally all matters relating thereto;
WHEREAS, as used herein, the "Company" shall include Amerihost Properties,
Inc. and all of its subsidiaries and affiliates;
NOW THEREFORE, in consideration of the premises and mutual covenants and
agreements of the parties herein contained, the parties agree as follows:
1. Payments. In connection with the termination of the Employment
Agreement and any other agreements and understandings relating to D'Onofrio's
employment by, and service as a director to, the Company, and in lieu of all
other amounts to which D'Onofrio may be entitled, the Company hereby agrees to
make the following payments to D'Onofrio, on the terms provided herein:
(a) the Company shall pay to D'Onofrio, on February, 14, 1997, an
amount equal to (x) $195,000 (representing one year's salary and bonus),
less (y) (i) any and all appropriate state and federal tax withholding and
(ii) the amount of all indebtedness D'Onofrio owes to the Company, plus all
accrued interest thereon;
(b) the Company shall continue to pay to D'Onofrio $7,500 bi-weekly
through December 31, 1997;
(c) the Company will continue to pay D'Onofrio's health insurance
premiums through December 31, 1997 pursuant to the terms of the Employment
Agreement; and
(d) the Company will continue to maintain a voice mail box for
D'Onofrio until April 30, 1997.
2. Termination of Employment Agreement. D'Onofrio and the Company
hereby agree that, as of the date hereof, the Employment Agreement, and any
other agreements and understandings relating to D'Onofrio's employment by, and
service as a director to, the Company, shall be and hereby are terminated.
D'Onofrio hereby acknowledges in particular that, in connection with the
termination of the Employment Agreement, (i) the Company will pay no more
premiums on the $1.0 million life insurance policy on D'Onofrio's life and (ii)
the monthly auto allowance provided by the Company to D'Onofrio will be
terminated immediately.
3. Return of Company Property. As soon as practicable following the
date hereof, D'Onofrio shall return to the Company all items belonging to the
Company, including, without limitation, all records and other documents obtained
by him or entrusted to him during the course of his employment with the Company,
together with all copies thereof, all office equipment, keys and credit cards,
and shall pay the Company any amount owed by him to it (whether pursuant to
Section 1(a) or otherwise). Additionally, as soon as practicable following the
date hereof, and in no event later than February 19, 1997, D'Onofrio shall
notify the proper entities to cause all cellular telephone services currently
provided to him by the Company to be transferred into D'Onofrio's name and to
become his sole responsibility. D'Onofrio shall reimburse the Company for all
amounts paid from and after January 29, 1997 with respect to such cellular
telephone services used by D'Onofrio.
4. Confidential Information.
(a) D'Onofrio hereby acknowledges that during the term of the
Employment Agreement and through D'Onofrio's relationships with the Company
and its subsidiaries and affiliates, D'Onofrio has had access to certain
confidential information, including, but not limited to, know-how,
processes, technology, trade secrets, and the like concerning the business,
customers, suppliers and relationships of the Company which are not
generally known outside the Company ("Confidential Information").
Confidential Information shall not include any of the above information
which has become publicly known other than through a breach of this
Agreement or through a breach of another party's obligation of
confidentiality to the Company.
(b) D'Onofrio further acknowledges that the Confidential Information
is of great value to the Company and if misused by D'Onofrio or allowed to
be used by D'Onofrio for or on behalf of a competitor of the Company would
cause the Company irreparable loss and damage, the extent of which will be
substantial but may not be readily capable of determination.
(c) Accordingly, D'Onofrio agrees to not, without prior written
consent of the Company, directly or indirectly, use, divulge or make
accessible to any person any Confidential Information at any time, except
as may be required by law or regulation, or in response to a request or
demand of a governmental agency or self-regulatory organization.
5. D'Onofrio Release.
(a) D'Onofrio, on behalf of himself, his heirs, executors, attorneys,
administrators, successors and assigns, hereby fully and forever releases
and discharges the Company and each of its related entities and each of
their partners, principals, members, shareholders, directors, officers,
trustees, employees, contractors, consultants, agents and attorneys, past,
present and future, and all predecessors, successors and assigns thereof
("Released Parties") from any and all claims, demands, agreements, actions,
suits, causes of action, damages, injunctions, restraints and liabilities,
of whatever kind or nature, in law, equity or otherwise, whether now known
or unknown or which have ever existed or which may now exist (except to
enforce the terms of this Agreement), including, but not limited to, any
and all claims, liabilities, demands or causes of action relating to or
arising out of D'Onofrio's recruitment, hiring, employment, or separation
from employment, such as claims under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. Section 2000e et seq., 42 U.S.C. Section 1981,
the federal and state (including, without limitation Illinois) statutes or
common law, or claims for breach of contract for misrepresentation,
negligence, invasion of privacy, for violation of any other federal, state
or local statute, ordinance or regulation or common law dealing in any
respect with discrimination in employment or otherwise, defamation,
infliction of emotional distress or any other tort under the common law of
any state or for attorneys' fees.
D'ONOFRIO SPECIFICALLY WAIVES AND RELEASES THE RELEASED PARTIES FROM
ALL CLAIMS HE MAY HAVE AS OF THE DATE HE SIGNS THIS AGREEMENT REGARDING CLAIMS
OR RIGHTS ARISING UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS
AMENDED, 29 U.S.C. Section 621 ("ADEA").
(b) The following provisions are applicable to and made a part of
this Agreement and the foregoing releases and waivers:
(1) D'Onofrio does not release or waive any right or claim which
he may have under the ADEA, as amended by the Older Workers Benefits
Protection Act, which arises after the date of execution of this
Agreement.
(2) In exchange for this general release and waiver hereunder,
D'Onofrio hereby acknowledges that he has received separate
consideration beyond that which he is otherwise entitled to under the
Employment Agreement, Company policy or applicable law.
(3) The Company has previously advised, and does hereby
expressly advise, D'Onofrio to consult with an attorney of his
choosing prior to executing this Agreement which contains a general
release and waiver.
(c) To the maximum extent permitted by law, D'Onofrio covenants not
to sue or to institute or cause to be instituted any kind of claim or
action (except to enforce this Agreement) in any federal, state or local
agency or court against any of the Released Parties arising out of, in the
course of, from or attributable to his employment by the Company or his
separation from the Company. D'Onofrio acknowledges and agrees that the
release and covenant not to sue are essential and material terms of this
Agreement and that, without such release and covenant not to sue, no
agreement would have been reached by the parties. D'Onofrio understands
and acknowledges the significance and consequences of this release and this
Agreement.
(d) D'Onofrio warrants and represents that he has neither made nor
suffered to be made any assignment or transfer of any right, claim, demand
or cause of action covered by the above release or covenant not to sue and
that D'Onofrio is the sole and absolute owner of all thereof and that
D'Onofrio has not filed or suffered to be filed on his behalf any claim,
action, demand or other matter of any kind covered by the above release or
covenant not to sue as of the date and time of the execution of this
Agreement. D'Onofrio also warrants and represents that he knows of no
other or further claim under any statute or common law, including without
limitation the Workers' Compensation law, against Employer.
(e) D'Onofrio agrees that neither this Agreement nor performance
hereunder constitutes an admission by Company of any violation of any
federal, state or local law, regulation, common law, of any breach of any
contract or any other wrongdoing of any type.
6. Company Release.
(a) The Company, on behalf of itself, its agents, representatives and
assigns hereby fully and forever releases and discharges D'Onofrio, his
heirs, executors, attorneys, administrators, successors and assigns,
("D'Onofrio Released Parties") from any and all claims, demands,
agreements, actions, suits, causes of action, damages, injunctions,
restraints and liabilities, of whatever kind or nature, in law, equity or
otherwise, whether now known or unknown or which have ever existed or which
may now exist (except to enforce the terms of this Agreement), including,
but not limited to, any and all claims, liabilities, demands or causes of
action relating to or arising out of D'Onofrio's recruitment, hiring,
employment, or separation from employment.
(b) To the maximum extent permitted by law, the Company covenants not
to sue or to institute or cause to be instituted any kind of claim or
action (except to enforce this Agreement) in any federal, state or local
agency or court against any of the D'Onofrio Released Parties arising out
of, in the course of, from or attributable to D'Onofrio's employment by the
Company or his separation from the Company. The Company acknowledges and
agrees that the release and covenant not to sue are essential and material
terms of this Agreement and that, without such release and covenant not to
sue, no agreement would have been reached by the parties. The Company
understands and acknowledges the significance and consequences of this
release and this Agreement.
(c) The Company warrants and represents that it has neither made nor
suffered to be made any assignment or transfer of any right, claim, demand
or cause of action covered by the above release or covenant not to sue and
that the Company is the sole and absolute owner of all thereof and that the
Company has not filed or suffered to be filed on its behalf any claim,
action, demand or other matter of any kind covered by the above release or
covenant not to sue as of the date and time of the execution of this
Agreement.
(d) The Company agrees that neither this Agreement nor performance
hereunder constitutes an admission by D'Onofrio of any violation of any
federal, state or local law, regulation, common law, of any breach of any
contract or any other wrongdoing of any type.
7. Acknowledgment. D'Onofrio acknowledges that he has carefully read
this Agreement and fully understands all of the provisions contained herein, and
that he knowingly, voluntarily, and willfully enters into this Agreement.
8. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission or,
if mailed, five days after the date of deposit in the United States mail, as
follows:
(i) if to the Company, to:
President
Amerihost Properties, Inc.
2400 East Devon Avenue
Suite 280
Des Plaines, IL 60018
with a copy to:
Helen R. Friedli, P.C.
McDermott, Will & Emery
227 W. Monroe Street
Chicago, IL 60606
(ii) if to D'Onofrio to:
Richard A. D'Onofrio
505 N. Lake Shore Drive #1516
Chicago, IL 60611
Any party may change its address for notice hereunder by notice to the
other party hereto.
9. Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, written or oral, with respect thereto.
10. Amendments and Waivers. This Agreement may be amended,
superseded, cancelled or renewed, and the terms and conditions hereof may be
waived, only by a written instrument signed by the parties or, in the case of a
waiver, by the party waiving compliance. No delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof. Nor shall any waiver on the part of any party of any such right, power
or privilege hereunder, nor any single or partial exercise of any right, power
or privilege hereunder, preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.
11. Governing Law. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Illinois. D'Onofrio
hereby submits to the jurisdiction of any court (state or federal) sitting in
the County of Cook, State of Illinois for the purpose of any lawsuit concerning
the construction or enforcement of this Agreement and further agrees he will
neither file nor seek to have any lawsuit removed or transferred to any other
forum. In the event that any clause, Section or subsection of this Agreement
shall be determined to be contrary to governing law or otherwise unenforceable,
all portions of this Agreement shall be enforced to the maximum extent permitted
by law.
12. Successors. This Agreement is personal to D'Onofrio and without
the prior written consent of the Company shall not be assignable by D'Onofrio
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be binding upon D'Onofrio's legal
representatives. This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
13. Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
14. Headings. The headings in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
D'ONOFRIO AMERIHOST PROPERTIES, INC.
By:
Richard A. D'Onofrio Michael P. Holtz
President and Chief Executive Officer