EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of July 15, 2003,
by and between GAYLORD ENTERTAINMENT COMPANY, a Delaware corporation having its
corporate headquarters at One Gaylord Drive, Nashville, Tennessee 37214 (the
"Company") and Mark Fioravanti, a resident of Nashville, Tennessee
("Executive").
WITNESSETH:
WHEREAS, the Company desires to employ Executive as its Senior Vice
President of Sales and Marketing, and Executive desires to serve in such
capacity pursuant to the terms of this Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
AGREEMENT
1. EMPLOYMENT; TERM. The Company hereby agrees to employ Executive, and
Executive hereby agrees to employment with the Company upon the terms and
conditions contained in this Agreement. The term of Executive's employment
hereunder shall commence as of the date hereof (the "Effective Date") and shall
continue for a period of four (4) years from and after the Effective Date (the
"Initial Period"). For purposes of this Agreement, a "Contract Year" shall mean
a one year period commencing on the Effective Date or any anniversary thereof.
This Agreement shall automatically renew for one (1) year terms (each referred
to as an "Extension Period") (the Initial Period and each Extension Period
collectively referred to as the "Employment Period") unless either party
notifies the other party at least ninety (90) days prior to the expiration of
the Initial Period or any Extension Period.
2. DUTIES; TITLE.
(a) Description of Duties.
(i) During the Employment Period, Executive shall serve the Company
as its Senior Vice President of Sales and Marketing and report directly to
the President of the Gaylord Opryland Resort and Convention Center.
Executive shall also perform such other duties as the President of the
Gaylord Opryland Resort and Convention Center shall reasonably determine.
(ii) Executive shall faithfully perform the duties required of his
office. Executive shall devote all of his business time and effort to the
performance of his duties to the Company. Executive shall not, during the
Employment Period, be engaged in any other business activity pursued for
gain, profit or other pecuniary advantage if such activity interferes with
Executive's duties and responsibilities hereunder.
(b) Company Policies. Executive shall be subject to and shall comply with
all codes of conduct, personnel policies and procedures applicable to senior
executives of the Company, including, without limitation, policies regarding
sexual harassment, conflicts of interest and insider trading.
3. CASH COMPENSATION.
(a) Base Salary. During the Employment Period, the Company shall pay to
Executive an annual salary of $215,000 (the "Base Salary"). The Company shall
evaluate Executive for base salary increases annually based on performance.
(b) Annual Cash Bonus. During the Employment Period, Executive shall be
eligible for an annual cash bonus of up to a target of 45% of Executive's Base
Salary (the "Year-End Bonus") to be paid to him in each calendar year with the
determination of the Year-End Bonus, if any, to be based on the achievement of
certain goals and Company performance criteria as established by the CEO and
approved by the Board's Human Resources Committee. The Year-End Bonus for each
calendar year shall be paid to Executive on or before February 28th of the
immediately succeeding year.
(c) Withholding. The Base Salary and each Year-End Bonus shall be subject
to applicable withholding and shall be payable in accordance with the Company's
payroll practices.
4. BENEFITS; EXPENSES; ETC.
(a) Expenses. During the Employment Period, the Company shall reimburse
Executive, in accordance with the Company's policies and procedures, for all
reasonable expenses incurred by Executive in connection with the performance of
his duties for the Company.
(b) Vehicle Allowance. During the Employment Period, Executive shall be
entitled to receive from the Company a vehicle allowance of $800 per month.
(c) Vacation. During the Employment Period, Executive shall be entitled to
three (3) weeks vacation during each Contract Year.
(d) Company Plans. During the Employment Period, Executive shall be
entitled to participate in and enjoy the benefits of (i) the Company Health
Insurance Plan, (ii) the Company 401(k) Savings Plan, (iii) the Company
Supplemental Deferred Compensation ("SUDCOMP") Plan, and (iv) any health, life,
disability, retirement, pension, group insurance, or other similar plan or plans
which may be in effect or instituted by the Company for the benefit of
executives generally, upon such terms as may be therein provided. A summary of
such benefits as in effect on the date hereof has been provided to Executive,
the receipt of which is hereby acknowledged.
5. TERMINATION. Executive's employment hereunder may be terminated prior
to the expiration of the Employment Period as follows:
(a) Termination by Death. Upon the death of Executive, Executive's
employment shall automatically terminate as of the date of death.
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(b) Termination by Company for Permanent Disability. At the option of the
Company, Executive's employment may be terminated by written notice to Executive
or his personal representative in the event of the Permanent Disability of
Executive. As used herein, the term "Permanent Disability" shall mean a physical
or mental incapacity or disability which renders Executive unable substantially
to render the services required hereunder for a period of ninety (90)
consecutive days or one hundred eighty (180) days during any twelve (12) month
period as determined in good faith by the Company.
(c) Termination by Company for Cause. At the option of the Company,
Executive's employment may be terminated by written notice to Executive upon the
occurrence of any one or more of the following events (each, a "Cause"):
(i) any action by Executive constituting fraud, self-dealing,
embezzlement, or dishonesty in the course of his employment hereunder;
(ii) any conviction of Executive of a crime involving moral
turpitude;
(iii) failure of Executive after written reasonable notice promptly
to comply with any material, valid and legal directive of the CEO;
(iv) a material breach by Executive of any of his obligations under
this Agreement and failure to cure such breach within ten (10) days of his
receipt of written notice thereof from the Company(or, if such material
breach is not capable of being cured within ten (10) days, Executive shall
fail to commence such cure within ten (10) days and diligently prosecute
such cure); or
(v) a failure by Executive to perform adequately his
responsibilities under this Agreement as demonstrated by objective and
verifiable evidence showing that the business operations under Executive's
control have been materially harmed as a result of Executive's gross
negligence or willful misconduct.
(d) Termination by Executive for Good Reason. At the option of Executive,
Executive may terminate his employment by written notice to Company given within
a reasonable time after the occurrence of the following circumstances ("Good
Reason"), unless the Company cures the same within thirty (30) days of such
notice:
(i) Any reduction by Company of his Base Salary (excluding a
reduction of up to 5% of his Base Salary provided such reduction is made
on a Company-wide basis);
(ii) Company's requiring Executive to be based anywhere other than
Nashville, Tennessee, except for required travel on the Company's
business; or
(iii) A material breach by the Company of any of its obligations
under this Agreement.
(e) Termination by Company Without Cause or by Executive Without Good
Reason. The Executive's employment may be terminated by the Company other than
for Permanent
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Disability or Cause upon written notice to Executive at any time ("Without
Cause") or by Executive other than for Good Reason upon written notice to the
Company at any time ("Without Good Reason").
6. EFFECT OF TERMINATION.
(a) Effect Generally. If Executive's employment is terminated prior to the
fourth anniversary of the Effective Date, the Company shall not have any
liability or obligation to Executive other than as specifically set forth in
Section 5, Section 6 and Section 7 hereof. Upon the termination of Executive's
employment for any reason, he shall, upon the request of the Company, resign
from all corporate offices held by Executive.
(b) Effect of Termination by Death. Upon the termination of Executive's
employment as a result of death, Executive's estate shall be entitled to receive
an amount equal to: (i) accrued but unpaid Base Salary through the date of
termination; (ii) a pro rata portion of Executive's Year-End Bonus, if any, for
the year in which termination occurs; (iii) any unpaid portion of the Year-End
Bonus for prior calendar years, accrued and unpaid vacation pay, unreimbursed
expenses incurred pursuant to Section 4(a) or (b) and any other benefits owed to
Executive pursuant to any written employee benefit plan or policy of the
Company, excluding benefits payable to any plan beneficiary pursuant to a
contractual beneficiary designation by Executive; (iv) the portion of any
restricted stock grant that is free from restrictions as of the date of death;
(v) Executive's vested stock options as of the date of death, the vesting and
exercise of which is governed by the Omnibus Plan; and (vi) all of Executive's
stock options, which pursuant to the Omnibus Plan are accelerated as of the
termination date and are exercisable until the expiration of the applicable
stock option term.
(c) Effect of Termination for Permanent Disability. Upon the termination
of Executive's employment hereunder as a result of Permanent Disability,
Executive shall be entitled to receive an amount equal to: (i) accrued but
unpaid Base Salary through the date of termination; (ii) a pro rata portion of
Executive's Year-End Bonus, if any, for the year in which termination occurs;
(iii) any unpaid portion of the Year-End Bonus for prior calendar years,
long-term disability benefits available to executives of the Company, accrued
and unpaid vacation pay, unreimbursed expenses incurred pursuant to Section 4(a)
or (b) and any other benefits owed to Executive pursuant to any written employee
benefit plan or policy of the Company; (iv) the portion of any restricted stock
grant that is free from restrictions as of the termination date; (v) Executive's
vested stock options as of the date of termination, the vesting of which is
governed by the Omnibus Plan; and (vi) all of Executive's stock options, which
pursuant to the Omnibus Plan are accelerated as of the termination date and are
exercisable until the expiration of the applicable stock option term. Payments
to Executive hereunder shall be reduced by any payments received by Executive
under any worker's compensation or similar law.
(d) Effect of Termination by the Company for Cause or by Executive Without
Good Reason. Upon the termination of Executive's employment by the Company for
Cause or by Executive Without Good Reason, Executive shall be entitled to
receive an amount equal to: (i) accrued but unpaid Base Salary through the date
of termination; (ii) any unpaid Year-End Bonus for prior calendar years, accrued
but unpaid vacation pay, unreimbursed expenses incurred
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pursuant to Section 4(a) or (b) and any other benefits owed to Executive
pursuant to any written employee benefit plan or policy of the Company; and
(iii) the portion of any restricted stock grant that is free from restrictions
as of the termination date. All stock options, to the extent not theretofore
exercised, shall terminate on the date of termination of employment under this
Section 6(d). Executive shall also forfeit any right to a Year-End Bonus for the
calendar year in which Executive's termination occurs.
(e) Effect of Termination by the Company Without Cause or by Executive for
Good Reason. Upon the termination of Executive's employment hereunder by the
Company Without Cause or by Executive for Good Reason, Executive shall be
entitled to: (i) an amount equal to Executive's Base Salary over a 12 month
period, payable in installments as normal payroll over the 12 months following
the date of termination; (ii) any unpaid portion of the Year-End Bonus for prior
calendar years and a prorated portion of any bonus the Executive may earn as a
Year-End Bonus for the current year, provided the Executive has been employed
for more than six months in the current year; (iii) accrued and unpaid vacation
pay, unreimbursed expenses incurred pursuant to Section 4(a) or (b) and any
other benefits owed to Executive pursuant to any written employee benefit plan
or policy of the Company; (iv) the portion of any restricted stock or restricted
stock unit grant that is free from restrictions as of the date of termination
and the acceleration and immediate release of all restrictions from all shares
of any restricted stock or restricted stock unit grant that are subject to
restrictions as of the date of termination and scheduled to vest during the 12
month period following the date of termination; (v) the vested portion of
Executive's stock options, and the acceleration and immediate vesting of
Executive's unvested stock options that are scheduled to vest during the 12
month period following the date of termination; and (vi) continued coverage
during the 12 month period following the date of termination under the Company's
employee medical and life insurance plans. Executive shall have one (1) year
from the date of such termination Without Cause or by Executive for Good Reason
to exercise all vested stock options.
7. CHANGE OF CONTROL.
(a) Definition. A "Change of Control" shall be deemed to have taken place
if:
(i) any person or entity, including a "group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, other than the Company, a
wholly-owned subsidiary thereof, or any employee benefit plan of the
Company or any of its subsidiaries becomes the beneficial owner of Company
securities having 50% or more of the combined voting power of the then
outstanding securities of the Company that may be cast for the election of
directors of the Company (other than as a result of the issuance of
securities initiated by the Company in the ordinary course of business);
(ii) as the result of, or in connection with, any cash tender or
exchange offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions, the
holders of all the Company's securities entitled to vote generally in the
election of directors of the Company immediately prior to such transaction
constitute, following such transaction, less than a majority of the
combined voting power of the then-outstanding securities of the Company or
any
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successor corporation or entity entitled to vote generally in the election
of the directors of the Company or such other corporation or entity after
such transactions; or
(iii) the Company sells all or substantially all of the assets of
the Company.
(b) Effect of Change of Control. In the event that within one (1) year
following a Change of Control, the Company terminates Executive Without Cause or
Executive terminates employment for Good Reason (and for purposes of the
definition of "Good Reason" as used in this paragraph 7(b), the following two
circumstances shall also constitute Good Reason in addition to the three
circumstances described in Section 5(d): (i) any adverse change by Company in
the Executive's position or title described in Section 2 hereof, whether or not
any such change has been approved by a majority of the members of the Board; and
(ii) the assignment to Executive, over his reasonable objection, of any duties
materially inconsistent with his status as Senior Vice President of Sales and
Marketing or a substantial adverse alteration in the nature of his
responsibilities), Executive shall be entitled to (in lieu of the benefits
provided pursuant to Section 6(e)): (i) an amount equal to Executive's Base
Salary over a 24 month period, payable in installments as normal payroll over
the 24 months following the date of termination; (ii) the payment of two (2)
times the Executive's average bonus for the prior three (3) calendar years;
(iii) any unpaid portion of the Year-End Bonus for prior calendar years, accrued
and unpaid vacation pay, unreimbursed expenses incurred pursuant to Section 4(a)
or (b) and any other benefits owed to Executive pursuant to any written employee
benefit plan or policy of the Company; (iv) the portion of any restricted stock
or restricted stock unit grant that is free from restrictions as of the date of
termination and the acceleration and immediate release of all restrictions from
all restricted stock or restricted stock unit grants that are subject to
restrictions as of the date of termination; (v) the vested portion of
Executive's stock options and the acceleration and immediate vesting of any
unvested portion of Executive's stock options; and (vi) continued coverage
during the 24 month period following the date of termination under the Company's
employee medical and life insurance plans. Executive shall have two (2) years
from the date of such termination to exercise all vested stock options.
(c) Going Private Transaction. Notwithstanding the foregoing, if any
entity initiates any Rule 13e-3 transaction, as that term is defined in Rule
13e-3 promulgated under the Securities Exchange Act of 1934 (the "Rule 13e-3
Transaction"), and all conditions precedent to the Company's obligation to
consummate the Rule 13e-3 Transaction shall have been satisfied, all unvested
stock options shall vest and all restrictions shall be removed from any
restricted stock grant shares; provided, however, that if the Rule 13e-3
Transaction is not thereafter consummated, the acceleration of stock option
vesting and removal of restricted stock grant restrictions shall be deemed to be
null and void.
8. EXECUTIVE COVENANTS.
(a) General. Executive and the Company understand and agree that the
purpose of the provisions of this Section 8 is to protect legitimate business
interests of the Company, as more fully described below, and is not intended to
impair or infringe upon Executive's right to work, earn a living, or acquire and
possess property from the fruits of his labor. Executive hereby acknowledges
that the post-employment restrictions set forth in this Section 8 are reasonable
and that they do not, and will not, unduly impair his ability to earn a living
after the termination of
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employment with the Company. Therefore, subject to the limitations of
reasonableness imposed by law upon restrictions set forth herein, Executive
shall be subject to the restrictions set forth in this Section 8.
(b) Definitions. The following capitalized terms used in this Section 8
shall have the meanings assigned to them below, which definitions shall apply to
both the singular and the plural forms of such terms:
"Confidential Information" means any confidential or proprietary
information possessed by the Company, including, without limitation, any
confidential "know-how," customer lists, details of client and consultant
contracts, current and anticipated customer requirements, pricing policies,
price lists, market studies, business plans, operational methods, marketing
plans or strategies, product development techniques or plans, computer software
programs (including object code and source code), data and documentation, data
base technologies, systems, structures and architectures, inventions and ideas,
past, current and planned research and development, compilations, devices,
methods, techniques, processes, financial information and data, business
acquisition plans, new personnel acquisition plans and any other information
that would constitute a trade secret under the common law or statutory law of
the State of Tennessee.
"Person" means any individual or any corporation, partnership, joint
venture, association or other entity or enterprise.
"Protected Employees" means employees of the Company or its affiliated
companies who are employed by the Company or its affiliated companies at any
time within six (6) months prior to the date of termination of Executive for any
reason whatsoever or any earlier date (during the Restricted Period) of an
alleged breach of the Restrictive Covenants by Executive.
"Restricted Period" means the period of Executive's employment by the
Company plus a period extending one (1) year from the date of termination of
employment; provided, however, the Restricted Period shall be extended for a
period equal to the time during which Executive is in breach of his obligations
to the Company under this Section 8. Notwithstanding any other provision of this
Agreement to the contrary, the Restricted Period for purposes of the
Non-Competition covenant set forth below in Section 8(c)(ii) will extend for one
(1) year from the date of termination of employment only in the event of a
termination of Executive's employment either (i) by the Company pursuant to
Sections 5 (c), or (ii) by the Executive pursuant to Section 5(e).
"Restrictive Covenants" means the restrictive covenants contained in
Section 8(c) hereof:
(c) Restrictive Covenants.
(i) Restriction on Disclosure and Use of Confidential Information.
Executive understands and agrees that the Confidential Information
constitutes a valuable asset of the Company and its affiliated entities,
and may not be converted to Executive's own use or converted by Executive
for the use of any other Person. Accordingly, Executive hereby agrees that
Executive shall not, directly or indirectly, at any time during the
Restricted Period or thereafter, reveal, divulge or disclose to any Person
not expressly authorized by the Company any Confidential Information, and
Executive shall not, at
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any time during the Restricted Period or thereafter, directly or
indirectly, use or make use of any Confidential Information in connection
with any business activity other than that of the Company. The parties
acknowledge and agree that this Agreement is not intended to, and does
not, alter either the Company's rights or Executive's obligations under
any state or federal statutory or common law including, without
limitation, any state or federal statutory or common law regarding trade
secrets and unfair trade practices.
(ii) Non-Competition. Executive shall not, during the Restricted
Period, directly or indirectly, for himself or on behalf of or in
conjunction with any other Person: (x) engage, as an officer, director,
shareholder, owner, partner, joint venturer or in a managerial capacity
whether as an employee, independent contractor, consultant or advisor, or
as sales representative, in any hotel business and/or meeting and
convention center business in direct competition with the Company or any
subsidiary of the Company, within seventy-five (75) miles of the locations
in which the Company or any of the Company's subsidiaries owns or operates
any hotel and/or meeting and convention center (the "Territory"), or (y)
call upon any Person which is at that time, or which has been, within one
(1) year prior to that time, a customer of the Company (including the
subsidiaries thereof) within the Territory for the purpose of providing
noncommercial property management, rental or sales services to property
owners and/or renters in direct competition with the Company or any
subsidiary of the Company within the Territory. The foregoing shall not be
deemed to prohibit Executive from acquiring as an investment not more than
two percent (2%) of the capital stock of a competing business whose stock
is traded on a national securities exchange or over-the-counter.
(iii) Non-solicitation of Protected Employees. Executive understands
and agrees that the relationship between the Company and each of its
Protected Employees constitutes a valuable asset of the Company and may
not be converted to Executive's own use or converted by Executive for the
use of any other Person. Accordingly, Executive hereby agrees that during
the Employment Period plus a period extending an additional twenty-four
(24) months from the date of termination of employment, Executive shall
not directly or indirectly on Executive's own behalf or on behalf of any
Person solicit any Protected Employee to terminate his or her employment
with the Company. For purposes of this Agreement, the term "solicit" shall
expressly exclude Persons responding to generic trade journal and
periodical advertisements.
(iv) Non-interference with Company Opportunities. Executive
understands and agrees that all business opportunities with which he is
involved during his employment with the Company constitute valuable assets
of the Company and its affiliated entities, and may not be converted to
Executive's own use or converted by Executive for the use of any other
Person. Accordingly, Executive hereby agrees that during the Restricted
Period or thereafter, Executive shall not directly or indirectly on
Executive's own behalf or on behalf of any Person, interfere with,
solicit, pursue, or in any way make use of any such business
opportunities.
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(v) Company Property. All records, designs, patents, business plans,
financial statements, manuals, memoranda, lists and other property
delivered to or compiled by Executive by or on behalf of the Company or
its representatives, vendors or customers which pertain to the business of
the Company shall be and remain in the property of the Company and be
subject at all times to its discretion and control. Likewise, all
correspondence, reports, records, charts, advertising materials and other
similar data pertaining to the business, activities or future plans of the
Company which is collected by Executive shall be delivered promptly to the
Company without request by it upon termination of Executive's employment.
(d) Exceptions from Disclosure Restrictions. Anything herein to the
contrary notwithstanding, Executive shall not be restricted from disclosing or
using Confidential Information that:
(i) is or becomes generally available to the public other than as a
result of an unauthorized disclosure by Executive or his agent;
(ii) becomes available to Executive in a manner that is not in
contravention of applicable law from a source (other than the Company or
its affiliated entities or one of its or their officers, employees, agents
or representatives) that is not known by Executive, after reasonable
investigation, to be bound by a confidential relationship with the Company
or its affiliated entities or by a confidentiality or other similar
agreement; or
(iii) is required to be disclosed by law, court order or other legal
process; provided, however, that in the event disclosure is required by
law, court order or legal process, Executive shall provide the Company
with prompt notice of such requirement so that the Company may seek an
appropriate protective order prior to any such required disclosure by
Executive.
(e) Enforcement of the Restrictive Covenants.
(i) Rights and Remedies upon Breach. In the event Executive
breaches, or threatens to commit a breach of, any of the provisions of the
Restrictive Covenants, the Company shall have the right and remedy to
enjoin, preliminarily and permanently, Executive from violating or
threatening to violate the Restrictive Covenants and to have the
Restrictive Covenants specifically enforced by any court of competent
jurisdiction, it being agreed that any breach or threatened breach of the
Restrictive Covenants would cause irreparable injury to the Company and
that money damages would not provide an adequate remedy to the Company.
The rights referred to herein shall be independent of any others and
severally enforceable, and shall be in addition to, and not in lieu of,
any other rights and remedies available to the Company at law or in
equity.
(ii) Severability of Covenant. Executive acknowledges and agrees
that the Restrictive Covenants are reasonable and valid in all respects.
If any court determines that any Restrictive Covenant, or any part
thereof, is invalid or unenforceable, the
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remainder of the Restrictive Covenants shall not thereby be affected and
shall be given full effect, without regard to the invalid portions.
9. COOPERATION IN FUTURE MATTERS. Executive hereby agrees that, for a
period of three (3) years following the date of his termination, he shall
cooperate with the Company's reasonable requests relating to matters that
pertain to Executive's employment by the Company, including, without limitation,
providing information or limited consultation as to such matters, participating
in legal proceedings, investigations or audits on behalf of the Company, or
otherwise making himself reasonably available to the Company for other related
purposes. Any such cooperation shall be performed at times scheduled taking into
consideration Executive's other commitments, and Executive shall be compensated
(except for cooperation in connection with legal proceedings) at a reasonable
hourly or per diem rate to be agreed by the parties to the extent such
cooperation is required on more than an occasional and limited basis. Executive
shall also be reimbursed for all reasonable out of pocket expenses. Executive
shall not be required to perform such cooperation to the extent it conflicts
with any requirements of exclusivity of service for another employer or
otherwise, nor in any manner that in the good faith belief of Executive would
conflict with his rights under or ability to enforce this Agreement or in the
event of a termination by the Company pursuant to Section 5(e) above.
10. INDEMNIFICATION. The Company shall indemnify Executive and hold him
harmless from and against any and all costs, expenses, losses, claims, damages,
obligations or liabilities (including actual attorneys' fees and expenses)
arising out of any acts or failures to act by the Company, its directors,
employees or agents, that occurred prior to the Effective Date, or arising out
of or relating to any acts, or omissions to act, made by Executive on behalf of
or in the course of performing services for the Company to the fullest extent
permitted by the Bylaws of the Company, or, if greater, as permitted by
applicable law, as the same shall be in effect from time to time. If any claim,
action, suit or proceeding is brought, or any claim relating thereto is made,
against Executive with respect to which indemnity may be sought against the
Company pursuant to this Section, Executive shall notify the Company in writing
thereof, and the Company shall have the right to participate in, and to the
extent that it shall wish, in its discretion, assume and control the defense
thereof, with counsel satisfactory to Executive.
11. EXECUTIVE'S REPRESENTATIONS AND WARRANTIES. Executive represents and
warrants that he is free to enter into this Agreement and, as of the Effective
Date, that he is not subject to any conflicting obligation or any disability
which shall prevent or hinder Executive's execution of this Agreement or the
performance of his obligations hereunder; that no lawsuits or claims are pending
or, to Executive's knowledge, threatened against Executive; and that he has
never been subject to bankruptcy, insolvency, or similar proceedings, has never
been convicted of a felony or a crime involving moral turpitude, and has never
been subject to an investigation or proceeding by or before the Securities and
Exchange Commission or any state securities commission. The Company shall have
the authority to conduct an independent investigation into the background of
Executive and Executive agrees to fully cooperate in any such investigation. The
Company shall notify Executive if it intends to conduct such an investigation.
12. NOTICES. Any and all notices or other communications required or
permitted to be given under any of the provisions of this Agreement shall be in
writing and shall be deemed
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to have been duly given when personally delivered or mailed by first class
registered mail, return receipt requested, or by commercial courier or delivery
service, or by facsimile or electronic mail, addressed to the parties at the
addresses set forth below (or at such other address as any party may specify by
notice to all other parties given as aforesaid):
(a) if to the Company, to: Gaylord Entertainment Company
One Gaylord Drive
Nashville, Tennessee 37214
Attn: President
Facsimile: (615) 316-6000
(b) if to Executive, to:
and/or to such other persons and addresses as any party shall have specified in
writing to the other by notice as aforesaid.
13. MISCELLANEOUS.
(a) Entire Agreement. This Agreement and the Exhibits hereto constitute
the entire agreement of the parties with respect to the subject matter hereof
and may not be modified, amended, or terminated except by a written agreement
signed by all of the parties hereto. Nothing contained in this Agreement shall
be construed to impose any obligation on the Company to renew this Agreement and
neither the continuation of employment nor any other conduct shall be deemed to
imply a continuing obligation upon the expiration of this Agreement.
(b) Assignment; Binding Effect. This Agreement shall not be assignable by
Executive, but it shall be binding upon, and shall inure to the benefit of, his
heirs, executors, administrators, and legal representatives. This Agreement
shall be binding upon the Company and inure to the benefit of the Company and
its respective successors and permitted assigns. This Agreement may only be
assigned by the Company to an entity controlling, controlled by, or under common
control with the Company; provided, however, that no such assignment shall
relieve the Company of any of its obligations hereunder.
(c) Waiver. No waiver of any breach or default hereunder shall be
considered valid unless in writing, and no such waiver shall be deemed a waiver
of any subsequent breach or default of the same or similar nature.
(d) Enforceability. Subject to the terms of Section 8(e) hereof, if any
provision of this Agreement shall be held invalid or unenforceable, such
invalidity or unenforceability shall attach only to such provision and shall not
in any manner affect or render invalid or unenforceable any other severable
provision of this Agreement, and this Agreement shall be carried out as if any
such invalid or unenforceable provision were not contained herein, unless the
invalidity or unenforceability of such provision substantially impairs the
benefits of the remaining portions of this Agreement.
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(e) Headings. The section headings contained herein are for the purposes
of convenience only and are not intended to define or limit the contents of the
sections.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall be deemed one original.
(g) Confidentiality of Agreement. The parties agree that the terms of this
Agreement as they relate to compensation, benefits, and termination shall,
unless otherwise required by law (including, in the Company's reasonable
judgment, as required by federal and state securities laws), be kept
confidential; provided, however, that any party hereto shall be permitted to
disclose this Agreement or the terms hereof with any of its legal, accounting,
or financial advisors provided that such party ensures that the recipient shall
comply with the provisions of this Section 13(g).
(h) Governing Law. This Agreement shall be deemed to be a contract under
the laws of the State of Tennessee and for all purposes shall be construed and
enforced in accordance with the internal laws of said state.
(i) No Third Party Beneficiary. This Agreement shall not confer any rights
or remedies upon any person or entity other than the parties hereto and their
respective successors, heirs, executors, administrators, legal representatives,
and permitted assigns.
(j) Dispute Resolution. Any controversy or claim between or among the
parties hereto, including but not limited to those arising out of or relating to
this Agreement or any related agreements or instruments, including any claim
based on or arising from an alleged tort, shall be determined by appropriate
state or federal courts located in Davidson County, Tennessee.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be duly executed as of the date first above written.
GAYLORD ENTERTAINMENT COMPANY
By: /s/ Carter R. Todd
---------------------------------------
Name: Carter R. Todd
Title: Senior Vice President, General
Counsel and Secretary
EXECUTIVE:
/s/ Mark Fioravanti
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Mark Fioravanti
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