Exhibit 10.20
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made this 6/th/ day of
March, 2000, by Crestline Hotels & Resorts, Inc. ("CHRI"), a corporation formed
under the laws of the State of Delaware and a wholly owned subsidiary of
Crestline Capital Corporation ("Crestline") with its principal place of business
at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000, and Xxxxxx X. Xxxxx,
residing at 0000 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 ("Xx. Xxxxx").
WHEREAS, CHRI is acquiring certain management contracts, hotel leases and
other assets from Stormont Trice Management Corporation, Stormont Trice
Corporation, STC Leasing Associates LLC and Stormont Trice Crestline Company
LLC, corporations or limited liability companies in which Xx. Xxxxx is a
shareholder, or member, as the case may be, and in which he holds various
offices, pursuant to that certain Asset Purchase Agreement by and among CHRI,
Stormont Trice Management Corporation, Stormont Trice Corporation, STC Leasing
Associates LLC, and Stormont Trice Crestline Company LLC (the "Asset Purchase
Agreement");
WHEREAS, as a material inducement and precondition to CHRI's consummation
of such acquisition and Xx. Xxxxx'x agreeing to the Asset Purchase Agreement,
the parties agree to execute this Agreement and to be bound by the terms and
conditions hereof; and
WHEREAS, CHRI desires to employ Xx. Xxxxx and to have the benefit of his
skills and services, and Xx. Xxxxx desires to be employed by CHRI, on the terms
and conditions set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
agree as follows:
1. Term of Employment
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CHRI hereby employs Xx. Xxxxx, and Xx. Xxxxx hereby accepts employment
with CHRI in Atlanta, Georgia, upon the terms and conditions set forth in this
Agreement. Unless terminated earlier pursuant to Section 5, Xx. Xxxxx'x
employment pursuant to this Agreement shall be for the three (3)-year period
commencing on the date hereof (the "Commencement Date"). The period during which
Xx. Xxxxx is employed pursuant to this Agreement is the "Employment Period."
2. Title; Duties
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Xx. Xxxxx shall be employed as President and Chief Executive Officer
of CHRI. Xx. Xxxxx shall report to the President and Chief Executive Officer of
Crestline. Xx. Xxxxx shall perform duties and services consistent with his
position as President and Chief Executive Officer of CHRI as may be assigned to
him from time to time by the President and Chief Executive Officer of Crestline
and are consistent with the bylaws of CHRI, including, but not limited to,
overall management of the affairs of CHRI.
3. Extent of Services
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(a) General. Xx. Xxxxx agrees not to engage in any business activities during
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the Employment Period except those which are for the sole benefit of CHRI,
and to devote his entire business time, attention, skill and effort to the
performance of his duties under this Agreement, provided, however, CHRI
acknowledges that Xx. Xxxxx currently owns approximately thirty-two percent
(32%) of Stormont Trice Development Corporation ("STDC") and serves on its
Board of Directors and also serves on the Board of Georgia Hospitality
Foundation and CHRI agrees that Xx. Xxxxx may continue to be an owner of
STDC and serve on STDC's Board and the Board of Georgia Hospitality
Foundation and may continue to do so provided that such service does not
impair the performance of his obligations under this Agreement. In the
event that the Board of Directors of CHRI gives written notification to Xx.
Xxxxx that his service on the Board of Directors of STDC or Georgia
Hospitality Foundation is impairing the performance of his obligations
under this Agreement, Xx. Xxxxx shall have thirty (30) calendar days to
cure such impairment or cease the activity causing such impairment. CHRI
acknowledges and agrees that Xx. Xxxxx plans to return to STDC as an
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officer and/or employee after the Employment Period and that such return as
an officer or such employment by STDC in and of itself will not violate
this Agreement. With the prior approval of the Board of Directors of CHRI,
Xx. Xxxxx may serve on the boards of directors of other corporations. Xx.
Xxxxx shall perform his duties to the best of his ability, shall adhere to
CHRI's published policies and procedures, and shall use his best efforts to
promote CHRI's interests, reputation, business and welfare.
(b) Corporate Opportunities. Xx. Xxxxx agrees that during the Employment Period
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he will not take personal advantage of any business opportunities which
arise during his employment with CHRI and which may be of benefit to CHRI
unless he shall have first received the approval of the President and Chief
Executive Officer of Crestline after promptly disclosing to the President
and Chief Executive Officer of Crestline all material facts regarding such
opportunities.
4. Compensation and Benefits
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(a) Salary. CHRI shall pay Xx. Xxxxx a gross base annual salary ("Base Salary")
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of not less than $300,000 during the Employment Period. The salary shall be
payable in arrears in approximately equal semi-monthly installments (except
that the first and last such semi-monthly installments may be prorated if
necessary) on CHRI's regularly scheduled payroll dates, minus such
deductions as may be required by law or reasonably requested by Xx. Xxxxx.
(b) Incentive Bonus. Xx. Xxxxx will be eligible to participate in CHRI's Annual
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Incentive Plan (the "Annual Incentive Plan"), with the opportunity to earn
a bonus (the "Bonus") if he meets certain financial and discretionary
measures set forth in the Annual Incentive Plan, subject to the last
sentence of this Section 4(b). The Bonus will be expressed as a percentage
of Base Salary, and will be calculated as follows: twenty-five percent
(25%) at threshold, fifty percent (50%) at target, and seventy-five percent
(75%) at maximum. Xx. Xxxxx'x Bonus will be based on the same goals set by
the Compensation Policy Committee of Crestline (the "Compensation
Committee") for the executive group of Crestline and will be calculated the
same way as the bonus provided to the executive group of Crestline with
respect to the nondiscretionary portion of the Bonus. Xx. Xxxxx shall be
guaranteed a minimum Bonus of
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fifty percent (50%) of Base Salary for the first twelve months during which
Xx. Xxxxx is employed by CHRI.
(c) Stock. On the Commencement Date, Xx. Xxxxx will be awarded nonqualified
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stock options (the "Stock Options") to purchase 125,000 shares of
Crestline's common stock and granted 15,000 shares of restricted Crestline
stock (the "Restricted Stock"). The exercise price of the Stock Options
will be determined under the Crestline Capital Corporation 1998
Comprehensive Stock Incentive Plan (the "Stock Incentive Plan") as of the
Commencement Date. The Stock Options and Restricted Stock will vest in
accordance with the following schedule:
Vested Vested Shares of
Months of Continuous Employment Options Restricted Stock
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12 41,666 5,000
24 41,667 5,000
36 41,667 5,000
Xx. Xxxxx'x vested Stock Options will terminate on the earlier of the
tenth anniversary of the grant or the fifth anniversary of Xx. Xxxxx'x
termination of employment. Xx. Xxxxx will be eligible for future grants
or programs under the Stock Incentive Plan at the sole discretion of the
Compensation Committee or any subcommittee thereof that is responsible
for administering the Stock Incentive Plan pursuant to such terms as the
Compensation Committee or such subcommittee shall determine.
(d) Other Benefits. Xx. Xxxxx will be eligible to participate in the employee
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benefit plans and other fringe benefit plans of CHRI ( provided that such
plans are not materially different from those of Crestline), including the
Health Plan, Dental Plan, Flexible Spending Accounts, Employee Stock
Purchase, Executive Deferred Compensation Plan, Retirement and Savings
Plan, Group Term Life Plan, Disability Plan, and Paid Time Off in
accordance with the terms of those plans and to the same extent they are
available to CHRI's executive group; provided, however, that Xx. Xxxxx
shall not be eligible to participate in any severance benefit plan of CHRI
or Crestline. In the event that such employee benefit plans or other fringe
benefit plans of CHRI are materially different from those of Crestline,
CHRI shall pay
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to Xx. Xxxxx such additional amounts as shall be necessary to bring Xx.
Xxxxx to the same benefit level as the Crestline executive group.
(e) Reimbursement of Business Expenses. CHRI shall reimburse Xx. Xxxxx for all
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reasonable travel, entertainment and other expenses incurred or paid by Xx.
Xxxxx in connection with, or related to, the performance of his duties,
responsibilities or services under this Agreement, upon presentation by Xx.
Xxxxx of documentation, expense statements, vouchers, and/or such other
supporting information as CHRI may reasonably request consistent with
CHRI's business expense policy.
5. Termination
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(a) Termination by CHRI for Cause. CHRI may terminate Xx. Xxxxx'x employment
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under this Agreement at any time for Cause, upon written notice by CHRI to
Xx. Xxxxx. For purposes of this Agreement, "Cause" for termination shall
mean any of the following: (i) the conviction of Xx. Xxxxx of, or the
entry of a plea of guilty or nolo contendere by Xx. Xxxxx to, any felony;
(ii) fraud, misappropriation or embezzlement by Xx. Xxxxx with regard to
the assets of CHRI, Crestline, or any of their affiliates (provided that
this shall not include immaterial expense items which Xx. Xxxxx
inadvertently requests be reimbursed as business expenses); (iii) Xx.
Xxxxx'x willful failure or gross negligence in the performance of his
assigned duties for CHRI, which failure or negligence continues for more
than thirty (30) calendar days following Xx. Xxxxx'x receipt of written
notice of such willful failure or gross negligence; (iv) Xx. Xxxxx'x breach
of his fiduciary duty to CHRI, Crestline, or any of their affiliates; (v)
the breach by Xx. Xxxxx of Sections 7 or 8 of this Agreement or of any
provision that certain Non-Competition Agreement among Crestline, CHRI and
Stormont Trice Management Corporation, Stormont Trice Corporation, STC
Leasing Associates LLC, and Stormont Trice Kansas Corporation each of even
date herewith (the "Entity Non-Competition Agreement"); or (vi) the breach
by Xx. Xxxxx of any other material term of this Agreement that causes, or
is reasonably likely to cause, substantial financial detriment to CHRI,
Crestline, or any of their affiliates; provided, however that failure by
Xx. Xxxxx to perform the duties set forth in Section 2 of this Agreement
shall not be considered material unless such failure is the type described
in this Section 5(a) (iii). Notwithstanding the foregoing, Xx. Xxxxx will
not be deemed to have been terminated for Cause unless and until
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CHRI delivers to him a copy of a resolution duly adopted by CHRI's Board of
Directors (after reasonable notice to Xx. Xxxxx and an opportunity to be
heard, together with counsel, before CHRI's Board of Directors), finding
that Xx. Xxxxx'x termination for Cause is justified and specifying the
particulars thereof in detail.
(b) Termination by CHRI or Xx. Xxxxx Without Cause. Either party may terminate
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this Agreement at any time without Cause, upon giving the other party
thirty (30) days written notice. At CHRI's sole discretion, it may
substitute thirty (30) days salary in lieu of notice. Any salary paid to
Xx. Xxxxx in lieu of notice shall not be offset against any entitlement Xx.
Xxxxx may have to the Early Termination Payment pursuant to Section 6(c).
(c) Termination by Xx. Xxxxx for Good Reason. Xx. Xxxxx may terminate his
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employment under this Agreement at any time for Good Reason, upon written
notice by Xx. Xxxxx to CHRI given no later than sixty (60) days following
the event constituting Good Reason. For purposes of this Agreement, "Good
Reason" for termination shall mean (i) the assignment to Xx. Xxxxx of
substantial duties or responsibilities inconsistent with Xx. Xxxxx'x
position at CHRI, or any other action by CHRI which results in a
substantial diminution of Xx. Xxxxx'x duties or responsibilities; (ii)
CHRI's failure to pay Xx. Xxxxx any Base Salary or other compensation to
which he is entitled, other than an inadvertent failure which is remedied
by CHRI within thirty (30) days after receipt of written notice thereof
from Xx. Xxxxx (or five (5) days for failure to pay Base Salary); (iii)
any reduction in Base Salary or a significant reduction in Xx. Xxxxx'x
aggregate other compensation, excluding any reductions caused by the
failure to achieve performance targets; (iv) the relocation of Xx. Xxxxx'x
principal place of employment from Atlanta, Georgia without Xx. Xxxxx'x
prior written consent; (v) the breach by CHRI of any other material term of
this Agreement that causes or is reasonably likely to cause, substantial
financial detriment to Xx. Xxxxx or (vi) a Change in Control. For purposes
of this Agreement, a "Change in Control" shall mean any of the following
events: (A) any Person (as that term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act") other
than Crestline or a Qualified Affiliate is or becomes the beneficial owner
(within the meaning of Rule 13d-3 promulgated under the Exchange Act),
directly or indirectly, of more than 50% of the combined voting power of
CHRI's then-outstanding voting securities; (B) the merger or consolidation
of CHRI with or
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into any other entity, where after such merger or consolidation any Person
other than Crestline or a Qualified Affiliate owns more than 50% of the
combined voting power of the continuing or surviving entity's voting
securities outstanding immediately after such merger or consolidation; or
(C) the approval by the stockholders of CHRI of a plan of complete
liquidation of CHRI, other than a liquidation into Crestline or a Qualified
Affiliate. For purposes of this Agreement, "Qualified Affiliate" shall mean
any direct or indirect subsidiary of Crestline, any employee benefit plan
(or related trust) sponsored or maintained by Crestline or by any entity
controlled by Crestline, or any person consisting of one or more
individuals who are then Crestline's Chief Executive Officer or any other
named executive officer (as defined in Item 402 of Regulation S-K under the
Securities Act of 1933) of Crestline as indicated in its most recent
securities filing made before the date of the transaction.
(d) Xx. Xxxxx'x Death or Disability. Xx. Xxxxx'x employment shall terminate
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immediately upon his death or, upon written notice as set forth below, his
Disability. As used in this Agreement, "Disability" shall mean such
physical or mental impairment as would render Xx. Xxxxx eligible to receive
benefits under the long-term disability insurance plan offered by CHRI in
which Xx. Xxxxx shall have elected to participate. If either party
terminates Xx. Xxxxx'x employment because of Xx. Xxxxx'x Disability, the
terminating party shall give the other party thirty (30) days advance
written notice to that effect.
6. Effect of Termination
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(a) General. Regardless of the reason for any termination of this Agreement,
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Xx. Xxxxx shall be entitled to (i) payment of any unpaid portion of his
Base Salary through the effective date of termination; (ii) reimbursement
for any outstanding reasonable business expense he has incurred in
performing his duties hereunder; (iii) continued insurance benefits to the
extent required by law; (iv) payment of any vested but unpaid rights as
required by the terms of any employee benefit plan or program of CHRI or
Crestline in which Xx. Xxxxx shall be entitled to participate pursuant to
Section 4(d) of this Agreement; and (v) retention of any stock options or
restricted stock in which Xx. Xxxxx shall already have vested prior to the
effective date of termination, subject to the termination schedule for
stock options set forth in Section
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4(c).
(b) Termination by CHRI for Cause or by Xx. Xxxxx Without Good Reason;
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Expiration of Agreement. If CHRI terminates Xx. Xxxxx'x employment for
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Cause, Xx. Xxxxx terminates his employment without Good Reason, or Xx.
Xxxxx'x employment ends at the expiration of three years from the
Commencement Date, Xx. Xxxxx shall have no rights or claims against CHRI,
Crestline or their affiliates, except to receive the payments and benefits
described in Section 6(a).
(c) Termination by CHRI Without Cause or by Xx. Xxxxx for Good Reason. If CHRI
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terminates Xx. Xxxxx'x employment without Cause pursuant to Section 5(b),
or Xx. Xxxxx terminates his employment for Good Reason pursuant to Section
5(c), Xx. Xxxxx shall be entitled to receive, in addition to the items
referenced in Section 6(a), (i) early termination pay (the "Early
Termination Payment") through the third anniversary of the Commencement
Date at an annualized amount equal to the greater of (A) $400,000, or (B)
the Base Salary plus a pro-rated Bonus based upon the goals achieved by Xx.
Xxxxx during the fiscal year in which the termination occurs, subject to
all legally required payroll deductions and withholdings for sums owed by
Xx. Xxxxx to CHRI, and (ii) vesting as of the last day of his employment in
any unvested portion of any stock option and any restricted stock
previously issued to Xx. Xxxxx. CHRI may elect, in its sole discretion, to
pay the Early Termination Payment to Xx. Xxxxx in a lump sum or over the
remainder of the Employment Period in approximately equal installments on
CHRI's regularly scheduled payroll dates.
(d) Termination In the Event of Death or Disability. If Xx. Xxxxx'x employment
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terminates in the event of his Disability or death, Xx. Xxxxx or his estate
shall be entitled to receive, in addition to the items referenced in
Section 6(a), a pro-rata share of any Bonus to which he otherwise would
have been entitled for the fiscal year in which his employment terminates
and any unvested Stock Options and Restricted Stock awarded pursuant to
Section 4(c).
7. Confidentiality
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(a) Definition of Proprietary Information. Xx. Xxxxx acknowledges that he may
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have been furnished or otherwise had access to, and may in the future be
furnished or otherwise have access to, confidential information which
relates to the following with regard to CHRI,
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Crestline, or their affiliates: past, present or future business
activities, strategies, services or products, research and development;
financial analysis and data; improvements, inventions, processes,
techniques, designs or other technical data; profit margins and other
financial information; fee arrangements; terms and contents of leases,
hotel management agreements, hotel leases and other contracts; tenant and
vendor lists or other compilations for marketing or development;
confidential personnel and payroll information; or other information
regarding administrative, management, financial, marketing, leasing or
sales activities of CHRI, Crestline, or their affiliates, or of a third
party which provided proprietary information to CHRI or Crestline on a
confidential basis. All such information, including any materials or
documents containing such information, shall be considered by CHRI and Xx.
Xxxxx as proprietary and confidential (the "Proprietary Information").
(b) Exclusions. Notwithstanding the foregoing, Proprietary Information shall
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not include (i) information disseminated by CHRI, Crestline or their
affiliates to third parties in the ordinary course of business; or (ii)
information in the public domain not as a result of a breach of any duty by
Xx. Xxxxx or any other person; or (iii) general hotel industry knowledge,
expertise, contacts, know-how and experience developed by Xx. Xxxxx prior
to the date hereof.
(c) Obligations. Both during and after the Employment Period, Xx. Xxxxx agrees
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to preserve and protect the confidentiality of the Proprietary Information
and all physical forms thereof, whether disclosed to him before this
Agreement is signed or afterward. In addition, Xx. Xxxxx shall not (i)
disclose or disseminate the Proprietary Information to any third party,
including employees of CHRI, Crestline or their affiliates without a
legitimate business need to know; (ii) remove the Proprietary Information
from the premises of CHRI, Crestline or their affiliates without a valid
business purpose; or (iii) use the Proprietary Information for his own
benefit or for the benefit of any third party, including, but not limited
to, Stormont Trice Development Corporation.
(d) Return of Proprietary Information. Xx. Xxxxx acknowledges and agrees that
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all the Proprietary Information used or generated during the course of
working for CHRI or Crestline is the property of CHRI or Crestline,
respectively. Xx. Xxxxx agrees to deliver to CHRI or Crestline all
documents and other tangibles (including diskettes and other storage
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media) containing the Proprietary Information at any time upon request by
the President and Chief Executive Officer of Crestline during his
employment and immediately upon termination of his employment.
8. Noncompetition
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(a) Restriction on Competition. During the Employment Period and the five (5)
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year period following the expiration or termination of Xx. Xxxxx'x
employment with CHRI for any reason (the "Restricted Period"), Xx. Xxxxx
agrees not to engage, directly or indirectly, as an owner, employee,
consultant, partner, principal, agent, representative, stockholder, or in
any other individual, corporate or representative capacity, in any
activities competitive with those of CHRI, Crestline or their affiliates.
Notwithstanding the prohibition in the immediately preceding sentence, (i)
following the later of Xx. Xxxxx'x termination of employment or the third
anniversary of the Commencement Date, Xx. Xxxxx may be employed by an
entity in existence as of the Commencement Date engaged in activities that
are competitive with CHRI, Crestline or their affiliates, (ii) Xx. Xxxxx
shall not be deemed to have violated this Section 8(a) by reason of his
ownership of (A) shares in any public company, where Xx. Xxxxx'x
shareholding is five percent (5%) or less of the shares then outstanding,
or (B) shares or membership units in any corporation or limited liability
company that is a party to the Asset Purchase Agreement, and (iii) in the
event that CHRI, Crestline or their affiliates engage in real estate
development, Xx. Xxxxx shall not be precluded from engaging in real estate
development activities, provided in all cases that Xx. Xxxxx continues to
comply with his other legal obligations to CHRI, Crestline and their
affiliates, including without limitation his obligations pursuant to
Sections 7 and 8(b) and (c) of this Agreement and the Entity Non-
Competition Agreement. Specifically, this Section 8(a) will not prohibit
Xx. Xxxxx from (i) retaining an ownership interest in STDC, (ii) continuing
to serve on STDC's Board of Directors, and (iii) working for STDC in any
capacity following the termination or expiration of Xx. Xxxxx'x employment
with CHRI for any reason (provided that Xx. Xxxxx complies with this
Section 8, and the Entity Non-Competition Agreement). Xx. Xxxxx agrees that
when he returns to become an employee or officer of STDC, he will not
engage in any activities competitive with the business of CHRI, Crestline
or their respective affiliates,
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except real estate development. Xx. Xxxxx and CHRI acknowledge and agree
that the restriction on competition contained in this Section 8 and the
Entity Non-Competition Agreement have each been entered into by the parties
in connection with the sale of certain management contracts, hotel leases
and other assets pursuant to the Asset Purchase Agreement for and in
consideration for a portion of the purchase price set forth therein.
(b) Non-Solicitation of Clients. During the Restricted Period, Xx. Xxxxx agrees
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that he will not, directly or indirectly, as an owner, employee,
consultant, partner, principal, agent, representative, stockholder, or in
any other individual, corporate or representative capacity, solicit any
Client on behalf of a competitor of CHRI, Crestline or their affiliates or
otherwise interfere with CHRI's, Crestline's or their affiliate's
relationship with such client; provided, however that this Section 8(b)
will not prohibit Xx. Xxxxx from soliciting a client on behalf of STDC to
the extent Xx. Xxxxx otherwise complies with this Agreement, and the Entity
Non-Competition Agreement. For purposes of this Agreement, a "Client" is
any person or entity that (i) is a client of CHRI, Crestline or their
affiliates and not already a client of STDC on the date of Xx. Xxxxx'x
termination of employment, (ii) was a client of CHRI, Crestline or their
affiliates and not already a client of STDC at any time during the one-year
period preceding the date of Xx. Xxxxx'x termination of employment, or
(iii) is, on the date of Xx. Xxxxx'x termination of employment, being
solicited by CHRI, Crestline or their affiliates and not already solicited
by STDC as a prospective client.
(c) Non-Solicitation of Employees or Consultants. During the Restricted Period,
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Xx. Xxxxx agrees that he will not, directly or indirectly, as an owner,
employee, consultant, partner, principal, agent, representative,
stockholder, or in any other individual, corporate or representative
capacity, solicit or induce any employee or consultant who is employed by
CHRI, Crestline, or an affiliate of either of them, on the date of Xx.
Xxxxx'x termination of employment or at any time within the one-year period
preceding the date of such termination to sever the employment or
engagement of the employee or consultant with CHRI, Crestline or their
affiliate, or accept employment with, or otherwise provide services to any
person or entity engaged in activities competitive with
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those of CHRI, Crestline or their affiliates.
(d) Acknowledgement. Xx. Xxxxx acknowledges that he will acquire certain
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Proprietary Information concerning the past, present and future business of
CHRI, Crestline and their affiliates as the result of his employment, as
well as access to the relationships between CHRI, Crestline, and their
affiliates, and their clients and employees. Xx. Xxxxx further
acknowledges that the business of CHRI, Crestline, and their affiliates as
it exists on the Commencement Date is very competitive and that competition
by him in that business during his employment, or after his employment
terminates, could severely injure CHRI, Crestline and their affiliates.
Xx. Xxxxx understands and agrees that the restrictions contained in this
Section 8 are reasonable and are required for the legitimate protection of
CHRI, Crestline and their affiliates, and do not unduly limit his ability
to earn a livelihood.
9. Employee Representation
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Xx. Xxxxx represents and warrants to CHRI that he is not now under any
obligation of a contractual or other nature to any person, business or other
entity which is inconsistent or in conflict with this Agreement or which would
prevent him from performing his obligations under this Agreement. CHRI
acknowledges and agrees that Xx. Xxxxx'x (i) ownership interest in STDC, (ii)
service on its Board of Directors during the Employment Period, and (iii) likely
return to employment with STDC at the termination of his employment with CHRI
are consistent with his obligations under this Agreement.
10. Arbitration
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(a) Any disputes between CHRI and Xx. Xxxxx in any way concerning Xx. Xxxxx'x
employment, the termination of his employment, this Agreement or its
enforcement shall be submitted at the initiative of either party to
mandatory arbitration in Georgia before a panel of three arbitrators
pursuant to the Employment Arbitration Rules of the American Arbitration
Association, or its successor, then in effect. The decision of the
arbitrator shall be rendered in writing, shall be final, and may be entered
as a judgment in any court with jurisdiction.
(b) Notwithstanding the foregoing, CHRI, in its sole discretion, may bring an
action in any court
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of competent jurisdiction to seek injunctive relief and such other relief
as CHRI shall elect to enforce Xx. Xxxxx'x covenants in Sections 7 and 8 of
this Agreement.
11. Miscellaneous
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(a) Notices. All notices required or permitted under this Agreement shall be
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in writing and shall be deemed effective (i) upon personal delivery, (ii)
upon deposit with the United States Postal Service, by registered or
certified mail, postage prepaid, or (iii) in the case of facsimile
transmission or delivery by nationally recognized overnight deliver
service, when received, addressed as follows:
(i) If to CHRI, to:
Crestline Hotels & Resorts, Inc.
c/o Crestline Capital Corporation
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
Fax No. 240/000-0000
(ii) If to Xx. Xxxxx, to:
Xx. Xxxxxx Xxxxx
0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
With a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
Fax No. 404/000-0000
Telephone No. 404/000-0000
or to such other address or addresses as either party shall designate
to the other in writing from time to time by like notice.
(b) Pronouns. Whenever the context may require, any pronouns used in this
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Agreement shall
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include the corresponding masculine, feminine or neuter forms, and the
singular forms of nouns and pronouns shall include the plural, and vice
versa.
(c) Entire Agreement. This Agreement, the Non-Competition Agreement, and the
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Asset Purchase Agreement constitute the entire agreement between the
parties and supersede all prior agreements and understandings, whether
written or oral, relating to the subject matter of this Agreement.
(d) Amendment. This Agreement may be amended or modified only by a written
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instrument executed by both CHRI and Xx. Xxxxx.
(e) No Mitigation. In the event that Xx. Xxxxx is terminated pursuant to
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Section 5 of this Agreement, Xx. Xxxxx shall not be required to mitigate
the amount of any termination payment provided for in this Agreement by
seeking other employment or otherwise; nor shall the amount of any payment
or benefit provided for in this Agreement be reduced by any compensation or
income received by Xx. Xxxxx in connection with his future employment.
(f) Attorneys' Fees. During the pendency of any controversy, claim or dispute
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under this Agreement, each party agrees to pay its own costs and expenses,
including reasonable attorneys' fees. In the event that CHRI is the non-
prevailing party in any litigation, arbitration or informal resolution
regarding such controversy, claim or dispute, CHRI agrees that it shall
promptly pay or reimburse Xx. Xxxxx for all costs and expenses, including
reasonable attorneys' fees, incurred in connection therewith.
(g) Governing Law. This Agreement shall be construed, interpreted and enforced
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in accordance with the laws of the State of Georgia, without regard to its
conflicts of laws principles.
(h) Successors and Assigns. This Agreement shall be binding upon and inure to
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the benefit of both parties and their respective successors and assigns,
including any entity with which or into which CHRI may be merged or which
may succeed to its assets or business or any entity to which CHRI may
assign its rights and obligations under this Agreement; provided, however,
that the obligations of Xx. Xxxxx are personal and shall not be assigned or
delegated by him.
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(i) Waiver. No delays or omission by CHRI or Xx. Xxxxx in exercising any right
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under this Agreement shall operate as a waiver of that or any other right.
A waiver or consent given by CHRI or Xx. Xxxxx on any one occasion shall be
effective only in that instance and shall not be construed as a bar or
waiver of any right on any other occasion.
(j) Captions. The captions appearing in this Agreement are for convenience of
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reference only and in no way define, limit or affect the scope or substance
of any section of this Agreement.
(k) Severability. In case any provision of this Agreement shall be held by a
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court or arbitrator with jurisdiction over the parties to this Agreement to
be invalid, illegal or otherwise unenforceable, such provision shall be
restated to reflect as nearly as possible the original intentions of the
parties in accordance with applicable law, and the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
(l) Counterparts. This Agreement may be executed in two or more counterparts,
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each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
CRESTLINE HOTELS & RESORTS, INC.
By: ________________________________
[Name]
[Title]
XXXXXX X. XXXXX
________________________________
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