Employment Agreement - LodgeNet Entertainment Corp. and Scott C. Petersen
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of July 22, 1998
is made by and between LodgeNet Entertainment Corporation, a Delaware
corporation (the "Corporation" or "LodgeNet"), and Scott C. Petersen
("Executive") with reference to the following circumstances, namely:
A. Executive is employed by LodgeNet as its President and Chief
Executive Officer, and as such is, and will be, making an
important contribution to the development and operation of
LodgeNet's business.
B. Because of the foregoing, the Corporation desires to provide for
its employment of Executive as hereinafter provided, and Executive
desires such employment, upon the terms hereinafter provided.
NOW, THEREFORE, the Corporation agrees to employ Executive, and Executive
agrees to such employment, upon the following terms and conditions:
1. PERIOD OF EMPLOYMENT. The employment of Executive by the
Corporation pursuant to this Agreement shall be for a period (sometimes
referred to herein as the "period of employment") beginning on the date
hereof and continuing, unless sooner terminated as provided in Section 6 or 8
herein, through June 30, 2000; provided, however, that on each December 31,
commencing with December 31, 1999, such period of employment shall
automatically be extended for an additional year unless sixty (60) days prior
thereto either party hereto has given written notice to the other that such
party does not wish to extend the period of employment.
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2. DUTIES. During the period of employment, Executive shall serve as
President and Chief Executive Officer of the Corporation, or in such other
office or offices to which he shall be elected by the Board of Directors of
the Corporation ("Board") with his approval, performing the duties of such
office or offices held at the time and such other duties not inconsistent
with his position as such an officer as are assigned to him by the Board or
committees of the Board. During the period of employment, Executive shall
devote his full time and attention to the business of the Corporation and the
discharge of the aforementioned duties, except for permitted vacations,
absences due to illness, and reasonable time for attention to personal
affairs.
3. OFFICE FACILITIES. During the period of employment, Executive shall
have his office where the Corporation's principal executive offices are
located from time to time, which currently are at 3900 West Innovation
Street, Sioux Falls, South Dakota, and the Corporation shall furnish
Executive with office facilities reasonably suitable to his position at such
location.
4. COMPENSATION. As compensation for his services performed hereunder,
the Corporation shall pay or provide to Executive the following:
(a.) The Corporation shall pay Executive a salary (the "Base Salary"),
calculated at the rate of Three Hundred Twenty Thousand Dollars
($320,000.00) per annum (which Base Salary may be increased by the Board
at any time and from time to time in its discretion), payable monthly,
semi-monthly or weekly according to the Corporation's general practice for
its executives, for the period of employment under this Agreement.
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(b.) During the period of employment, Executive shall be allowed to
participate in such bonus and other incentive compensation programs in
accordance with their terms as the Corporation may have in effect from
time to time for its executive personnel, and all compensation and other
entitlements earned thereunder shall be in addition to, and shall not in
any way reduce, the amount payable as Base Salary.
(c.) During the period of employment, Executive shall be entitled to:
(i) participate in such retirement, investment, health
(medical, hospital and/or dental) insurance, life insurance,
disability insurance and accident insurance plans and programs as
are maintained in effect from time to time by the Corporation for
its salaried employees;
(ii) participate in other non-duplicative benefit programs
which the Corporation may from time to time offer generally to
executive personnel of the Corporation; and
(iii) take vacations and be entitled to sick leave in
accordance with the Corporation's policy for executive personnel of
the Corporation.
(d.) During the period of employment, the Board from time to time in
its discretion may grant to Executive stock options, and other rights
related to shares of the Corporation's common stock.
(e.) During the period of employment, the Corporation shall provide
Executive with a monetary allowance in an amount acceptable to Executive
which is approved by the Board for the lease of a suitable automobile and
insurance therefor.
5. EFFECT OF DISABILITY AND CERTAIN HAZARDS. Executive shall not be
obligated to perform the services required of him by this Agreement during any
period in which he is
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disabled or his health is impaired to an extent which would render his
performance of such services hazardous to his health or life, and relief from
such obligation shall not in any way affect his rights hereunder except to
the extent that such disability may result in termination of his employment
by the Corporation pursuant to Section 6 herein.
6. TERMINATION OF EMPLOYMENT. The employment of Executive by the
Corporation pursuant to this Agreement may be terminated prior to June 30, 2000,
or any subsequent June 30 to which the end of the period of employment may have
been extended under Section 1, as follows:
(a) In the event of Executive's death prior to said date, such
employment shall terminate on the date of death.
(b) Such employment may be terminated prior to said date due to
Executive's physical or mental disability which prevents the effective
performance by Executive of his duties hereunder on a full time basis,
with such termination to occur on or after the time which Executive
becomes entitled to disability compensation benefits under the
Corporation's long term disability benefit program then in effect. Any
dispute as to Executive's physical or mental disability shall be settled
by the opinion of an impartial physician selected by the parties or their
representatives or, in the event of failure to make a joint selection
after request therefore by either party to the other, a physician selected
by the Corporation, with the fees and expenses of any such physician to be
borne by the Corporation.
(c) The Corporation, by giving written notice of termination to
Executive, may terminate such employment at any time prior to said date
for Cause, which means that such termination must be due to (1) acts
during the term of this Agreement (A) resulting
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in a felony conviction under any Federal or state statute (B)
substantial non-performance of Executive of his employment duties
required by this Agreement or (2) Executive willfully engaging in
dishonesty or gross misconduct injurious to the Corporation during the
term of this Agreement, with "Cause" to be determined in any case by
the Board after reasonable written notice to Executive and an
opportunity for Executive to be heard at a meeting of the Board and
with reasonable opportunity (of not less than 30 days) in the case of
clause (1)(B) to cease substantial non-performance.
(d) The Corporation may terminate such employment at any time prior to
said date without Cause (which shall be for any reason not covered by
preceding subsections (a) through (c)) upon 60 days prior written notice
to Executive.
(e) In the event that a Termination Event (as that term is defined in
the Executive Severance Agreement, dated July 25, 1995) has occured, then
the Executive may terminate such employment according to the terms and
conditions set forth in said Executive Severance Agreement, and shall then
be exclusively entitled to any and all payments and benefits provided
under said Agreement to the exclusion of any provisions contained herein.
7. PAYMENTS UPON TERMINATION.
(a) Except as otherwise provided in subsection (b) of this Section 7,
upon termination of Executive's employment by the Corporation, all
compensation due Executive under this Agreement and under each plan or
program of the Corporation in which he may be participating at the time shall
cease to accrue as of the date of such termination (except, in the case of
any such plan or program, if and to the extent otherwise provided in the
terms of such plan or program), and all such compensation accrued as of
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the date of such termination but not previously paid shall be paid to
Executive at the time such payment otherwise would be due. Unless
otherwise expressly provided in the terms of the bonus plan or program
of the Corporation in which the Executive is a participant at the time
of his termination, if the termination of Executive's employment is not
for Cause, then a pro rata portion of the "target" full year's bonus
shall be deemed to have accrued for the Executive under such bonus plan
or program for the portion of the year ended on the date of the
termination, which shall be paid to the Executive at the time bonus
payment otherwise would be due.
(b) If Executive's employment pursuant to this Agreement is terminated
without Cause pursuant to subsection (d) of Section 6 herein, then, in
addition to the payments required by subsection (a) of this Section 7,
Executive shall be entitled to the vesting of all options previously
granted but still subject to vesting, and shall receive, subject to the
mitigation provisions of Section 11(a) below, for a period of twenty-four
months (the "Severance Period") a cash severance payment (the "Severance
Payment") from the Corporation. The amount of the Severance Payment shall
be equal to the Executive's then monthly Base Salary increased by a factor
of twenty percent (20%) to account for the Executive's loss of benefits.
Executive shall have the right to purchase health and dental coverage
under the Company's group policies then in effect for the Severance
Period. The Severance Payment shall be due and payable on the 20th day of
each month and is subject to required withholding. The Executive shall
also be entitled to the benefits under this Section in the event the
Corporation elects at any time not to renew or extend this Agreement
pursuant to Section 1. The Executive shall not be entitled to a Severance
Payment in any event if he is terminated for Cause as permitted by Section
6.
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8. CONFIDENTIAL INFORMATION. Executive shall not at any time during the
period of employment and thereafter disclose to others or use any trade secrets
or any other confidential information belonging to the Corporation or any of its
subsidiaries, including, without limitation, drawings, plans, programs,
specifications and non-public information relating to customers of the
Corporation or its subsidiaries, except as may be required to perform his duties
hereunder. The Corporation or its subsidiaries, except as may be required to
perform his duties hereunder. The provisions of this Section 9 shall survive the
termination of Executive's employment with the Corporation, provided that after
the termination of Executive's employment with the Corporation, the restrictions
contained in this Section 8 shall not apply to any such trade secret or
confidential information which becomes generally known in the trade.
9. PATENTS AND OTHER INTELLECTUAL PROPERTY The Corporation shall be
entitled to any and all ideas, know-how and inventions, whether patentable or
not, which Executive shall conceive, make or develop during the period of his
employment with the Corporation, relating to the business of the Corporation or
any of his subsidiaries. Executive shall, from time to time, at the request of
the Corporation, execute and deliver such instruments or documents, and shall
perform or do such acts or things, as reasonably may be requested in order that
the Corporation may have the benefit of such ideas, know-how and inventions and,
in particular, so that patent applications may be prepared and filed in the
United States Patent Office, or in appropriate places in foreign countries,
covering any of the patentable ideas on intentions covered by this Agreement as
aforesaid, including appropriate assignments vesting in the Corporation or any
of its subsidiaries (or any successor to the Corporation or any of its
subsidiaries) full title to any and all such ideas, inventions and applications.
Further,
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Executive will cooperate and assist the Corporation in the prosecution of any
such applications in order that patents may issue thereon.
10. NON-COMPETITION: NON-MITIGATION: LITIGATION EXPENSES.
(a) For the first eighteen months following termination of his
employment with the Corporation, Executive shall not be required to mitigate
the amount of any termination benefits due him under Section 7 herein, by
seeking employment with others, or otherwise, nor shall the amount of such
benefits be reduced or offset in any way by any income or benefits earned by
Executive from another employer or other source during said period;
thereafter, said termination benefits shall be reduced by one-half of the
amount Executive may earn from any full time employment position or
occupation. However, if Executive becomes employed, as a full or part time
employee, or as a consultant or advisor, to any enterprise engaged in
competition with the business then being conducted by the Corporation, any
obligation which the Corporation otherwise would have had under Section 7
shall thereupon terminate and cease to be of any further force and effect
other than to the extent theretofore performed by the Corporation.
(b) Until the period of employment expires (which for these purposes shall
be calculated without giving effect to early termination pursuant to Section
6), Executive shall not enter into endeavors that are competitive with the
business or operations of the Corporation in the lodging pay-per-view/guest
services market, and shall not own an interest in, manage, operate, join,
control, lend money or render financial or other assistance to or participate
in or be connected with, as an officer, employee, director, partner,
stockholder (expect for passive investments of not more than a one percent
interest in the securities of a publicly held corporation regularly traded on
a national
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securities exchange or in an over-the-counter securities market),
consultant or otherwise, any individual, partnership, firm, corporation
or other business organization or entity that engages in a business
which competes with the Company in the lodging pay-per-view/guest
services market. For these purposes, employment with a vendor of cable
television services shall not be treated as competitive with the
business or operations of the Corporation in the lodging per-view/guest
services market.
(c) The Corporation shall pay Executive's out-of-pocket expenses,
including attorneys' fees, but not to exceed a total of $10,000 for any
proceeding or group of related proceedings to enforce, construe or
determine the validity of the provisions for termination benefits in
Section 7 or 8 herein provided however, that if any arbitration or
litigation results in a finding in favor of the Executive contrary to the
position of the Company, then Executive will be reimbursed for all
reasonable legal and related costs regardless of the limitation set forth
above; and further provided that in no event will Executive be held liable
for the legal and related costs of the Company in an event of a finding in
favor of the Company.
11. ARBITRATION. Any dispute or controversy arising under or in
connection with the Agreement shall be settled exclusively by arbitration in the
city where the principal executive offices of the Corporation are then located,
in accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction.
12. MISCELLANEOUS.
(a) This Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of the Corporation, including any party
with which the
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Corporation may merge or consolidate or to which it may transfer
substantially all of its assets.
(b) The rights and obligations of Executive under this Agreement are
expressly declared and agreed to be personal, nonassignable and
nontransferable during his life, but upon his death this Agreement shall
inure to the benefit of his heirs, legatees and legal representatives of
his estate.
(c) The waiver by either party hereto of its rights with respect to a
breach of any provision of this Agreement by the other shall not operate
or be construed as a waiver of any rights with respect to any subsequent
breach.
(d) No modification, amendment, addition, alteration or waiver of any
of the terms, covenants or conditions hereof shall be effective unless
made in writing and duly executed by the Corporation and Executive.
(e) This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which together will
constitute but one and the same agreement.
(f) This Agreement shall be construed according to the laws of the
State of South Dakota.
(g) If any provision of this Agreement is determined to be invalid or
unenforceable under any applicable statute or rule of law, it is to that
extent to be deemed omitted and it shall not affect the validity or
enforceability of any other provision.
(h) Any notice required or permitted to be given under this Agreement
shall be in writing, and shall be deemed given when sent by registered or
certified mail, postage prepaid, addressed as follows:
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If to Executive: Scott C. Petersen
26 Riverview Heights
Sioux Falls, SD 57105
If to the Corporation: LodgeNet Entertainment Corporation
3900 West Innovation Street
Sioux Falls, SD 57107
Attn: General Counsel
or mailed to such other person and/or address as the party to be notified
may hereafter have designated by notice given to the other party in a
similar manner.
13. PRIOR AGREEMENTS SUPERSEDED. This agreement supersedes all prior
agreements between the parties hereto with respect to the subject matter hereof
including any prior employment agreement provided however, that the Executive
Severance Agreement, dated July 25, 1995, shall remain in full force and effect
and shall exclusively govern any payments and benefits in the event that a
Termination Event (as that term is defined in said Agreement) has occurred.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the date and year first above written.
LodgeNet Entertainment Corporation
By:
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Senior Vice President
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Scott C. Petersen
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