Exhibit 10.17
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made this 23/rd/ day of
June, 1999, by Crestline Capital Corporation, a corporation formed under the
laws of the State of Maryland with its principal place of business at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Crestline") and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, residing at ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇▇.
▇▇▇▇▇▇▇").
WHEREAS, Crestline desires to employ ▇▇. ▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇ desires to
be employed by Crestline; and
WHEREAS, the parties wish to set forth the terms and conditions of that
employment;
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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Crestline hereby employs ▇▇. ▇▇▇▇▇▇▇, and ▇▇. ▇▇▇▇▇▇▇ hereby accepts
employment with Crestline, upon the terms and conditions set forth in this
Agreement. Unless terminated earlier pursuant to Section 5, ▇▇. ▇▇▇▇▇▇▇'
employment pursuant to this Agreement shall be for the two (2)-year period
commencing on January 1, 1999 (the "Commencement Date") and ending on December
31, 2000 (the "Initial Term"), and thereafter shall automatically renew for
successive twelve (12) month periods (each of which shall be an "Additional
Term"). The Initial Term, together with any Additional Term, shall be referred
to herein as the "Employment Period."
2. Title; Duties
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(a) ▇▇. ▇▇▇▇▇▇▇ shall be employed as Executive Vice President, Chief
Financial Officer and Treasurer of Crestline. ▇▇. ▇▇▇▇▇▇▇ shall report to
the President of Crestline (the "President"), who shall have the authority
to direct, control and supervise the activities of ▇▇. ▇▇▇▇▇▇▇. ▇▇. ▇▇▇▇▇▇▇
shall perform such services consistent with his position as may be assigned
to him from time to time by the President and are consistent with the
bylaws of Crestline, including, but not limited to, managing the financial
affairs of Crestline.
(b) ▇▇. ▇▇▇▇▇▇▇' place of employment shall be Bethesda, Maryland, or such
other location within a 75-mile radius of the address first written above
as the President shall direct; provided, however, that ▇▇. ▇▇▇▇▇▇▇' duties
may require extensive travel.
3. Extent of Services
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(a) General. ▇▇. ▇▇▇▇▇▇▇ agrees not to engage in any business activities
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during the
Employment Period except those which are for the sole benefit of Crestline,
and to devote his entire business time, attention, skill and effort to the
performance of his duties under this Agreement. Notwithstanding the
foregoing, ▇▇. ▇▇▇▇▇▇▇ may (i) engage in personal investments and
charitable, professional and civic activities which do not impair the
performance of his duties to Crestline, and (ii) with the prior approval of
the Board of directors of Crestline (the "Board of Directors"), serve on
the boards of directors of corporations other than Crestline, provided,
however, that no such approval shall be necessary for ▇▇. ▇▇▇▇▇▇▇'
continued service on any board of directors to which he was elected prior
to the date of this Agreement. ▇▇. ▇▇▇▇▇▇▇ shall perform his duties to the
best of his ability, shall adhere to Crestline's published policies and
procedures, and shall use his best efforts to promote Crestline's
interests, reputation, business and welfare.
(b) Corporate Opportunities. ▇▇. ▇▇▇▇▇▇▇ agrees that he will not take
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personal advantage of any business opportunities which arise during his
employment with Crestline and which may be of benefit to Crestline. All
material facts regarding such opportunities must be promptly reported to
the Board of Directors for consideration by Crestline.
4. Compensation and Benefits
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(a) Salary. Crestline shall pay ▇▇. ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ base annual salary
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("Base Salary") of $330,000. 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
Crestline's regularly scheduled payroll dates, minus such deductions as may
be required by law or reasonably requested by ▇▇. ▇▇▇▇▇▇▇. Crestline's
Compensation Policy Committee (the "Compensation Committee") shall review
his Base Salary annually in conjunction with its regular review of employee
salaries and make such adjustments, if any, to his Base Salary as the
Compensation Committee shall deem appropriate.
(b) Other Benefits. ▇▇. ▇▇▇▇▇▇▇ shall be entitled to paid time off and
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holiday pay in accordance with Crestline's policies in effect from time to
time and to participate in such life, health, and disability insurance,
pension, deferred compensation and incentive plans, stock options and
awards, performance bonuses and other benefits as Crestline extends, as a
matter of policy, to its executive employees.
(c) Reimbursement of Business Expenses. Crestline shall reimburse Mr.
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▇▇▇▇▇▇▇ for all reasonable travel, entertainment and other expenses
incurred or paid by ▇▇. ▇▇▇▇▇▇▇ in connection with, or related to, the
performance of his duties, responsibilities or services under this
Agreement, upon presentation by ▇▇. ▇▇▇▇▇▇▇ of documentation, expense
statements, vouchers, and/or such other supporting information as Crestline
may reasonably request.
5. Termination
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(a) Termination by Crestline for Cause. Crestline may terminate Mr.
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▇▇▇▇▇▇▇' employment under this Agreement at any time for Cause, upon
written notice by
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Crestline to ▇▇. ▇▇▇▇▇▇▇. For purposes of this Agreement, "Cause" for
termination shall mean any of the following: (i) the conviction of ▇▇.
▇▇▇▇▇▇▇ of, or the entry of a plea of guilty or nolo contendere by ▇▇.
▇▇▇▇▇▇▇ to, any felony; (ii) fraud, misappropriation or embezzlement by ▇▇.
▇▇▇▇▇▇▇; (iii) ▇▇. ▇▇▇▇▇▇▇' willful failure or gross negligence in the
performance of his assigned duties for Crestline, which failure or
negligence continues for more than thirty (30) calendar days following ▇▇.
▇▇▇▇▇▇▇' receipt of written notice of such willful failure or gross
negligence; (iv) ▇▇. ▇▇▇▇▇▇▇' breach of his fiduciary duty to Crestline;
(v) any act or omission of ▇▇. ▇▇▇▇▇▇▇ that has a demonstrated and material
adverse impact on Crestline's reputation for honesty and fair dealing; or
(vi) the breach by ▇▇. ▇▇▇▇▇▇▇ of any material term of this Agreement.
(b) Termination by Crestline or ▇▇. ▇▇▇▇▇▇▇ Without Cause. Either party
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may terminate this Agreement at any time without Cause, upon giving the
other party sixty (60) days written notice. At Crestline's sole discretion,
it may substitute sixty (60) days salary in lieu of notice. Any salary paid
to ▇▇. ▇▇▇▇▇▇▇ in lieu of notice shall not be offset against any
entitlement ▇▇. ▇▇▇▇▇▇▇ may have to the Severance Payment pursuant to
Section 6(b).
(c) Termination by ▇▇. ▇▇▇▇▇▇▇ for Good Reason. ▇▇. ▇▇▇▇▇▇▇ may terminate
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his employment under this Agreement at any time for Good Reason, upon
written notice by ▇▇. ▇▇▇▇▇▇▇ to Crestline. For purposes of this Agreement,
"Good Reason" for termination shall mean (i) the assignment to ▇▇. ▇▇▇▇▇▇▇
of substantial duties or responsibilities inconsistent with ▇▇. ▇▇▇▇▇▇▇'
position at Crestline, or any other action by Crestline which results in a
substantial diminution of ▇▇. ▇▇▇▇▇▇▇' duties or responsibilities; (ii) a
requirement by Crestline that ▇▇. ▇▇▇▇▇▇▇ work principally from a location
outside the 75-mile radius specified in Section 2(b); (iii) Crestline's
failure to pay ▇▇. ▇▇▇▇▇▇▇ any Base Salary or other compensation to which
he is entitled, other than an inadvertent failure which is remedied by
Crestline within thirty (30) days after receipt of written notice thereof
from ▇▇. ▇▇▇▇▇▇▇ (or five (5) days for failure to pay Base Salary); or (iv)
a substantial reduction in ▇▇. ▇▇▇▇▇▇▇' aggregate Base Salary and other
compensation taken as a whole, excluding any reductions caused by the
failure to achieve performance targets.
(d) ▇▇. ▇▇▇▇▇▇▇' Death or Disability. ▇▇. ▇▇▇▇▇▇▇' employment shall
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terminate 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 ▇▇. ▇▇▇▇▇▇▇ eligible to
receive benefits under the long-term disability insurance plan then made
available by Crestline to its employees. If the Employment Period is
terminated by reason of ▇▇. ▇▇▇▇▇▇▇' Disability, either party shall give
thirty (30) days advance written notice to that effect to the other.
6. Effect of Termination
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(a) General. Regardless of the reason for any termination of this
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Agreement, ▇▇. ▇▇▇▇▇▇▇ 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
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insurance benefits to the extent required by law; and (iv) payment of any
vested but unpaid rights as required independent of this Agreement by the
terms of any bonus or other incentive pay or stock plan, or any other
employee benefit plan or program of Crestline.
(b) Termination by Crestline for Cause or by ▇▇. ▇▇▇▇▇▇▇ Without Good
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Reason. If Crestline terminates ▇▇. ▇▇▇▇▇▇▇' employment for Cause or Mr.
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▇▇▇▇▇▇▇ terminates his employment without Good Reason, ▇▇. ▇▇▇▇▇▇▇ shall
have no rights or claims against Crestline except to receive the payments
and benefits described in Section 6(a).
(c) Termination by Crestline Without Cause or by ▇▇. ▇▇▇▇▇▇▇ for Good
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Reason. If Crestline terminates ▇▇. ▇▇▇▇▇▇▇' employment without Cause
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pursuant to Section 5(b), or ▇▇. ▇▇▇▇▇▇▇ terminates his employment for Good
Reason pursuant to Section 5(c), ▇▇. ▇▇▇▇▇▇▇ shall be entitled to receive,
in addition to the items referenced in Section 6(a), the following:
(i) an amount equal to his Base Salary at the rate in effect on his
last day of employment for a period of twelve (12) months (the
"Severance Payment"). The Severance Payment shall be paid in
approximately equal installments on Crestline's regularly scheduled
payroll dates, subject to all legally required payroll deductions and
withholdings for sums owed by ▇▇. ▇▇▇▇▇▇▇ to Crestline;
(ii) continued payment by Crestline for ▇▇. ▇▇▇▇▇▇▇' life, health and
disability insurance coverage during the twelve (12) month severance
period referenced in Section 6(c)(i) to the same extent that Crestline
paid for such coverage immediately prior to the termination of ▇▇.
▇▇▇▇▇▇▇' employment and subject to the eligibility requirements and
other terms and conditions of such insurance coverage, provided that
if any such insurance coverage shall become unavailable during the
twelve (12) month severance period, Crestline thereafter shall be
obliged only to pay to ▇▇. ▇▇▇▇▇▇▇ an amount equal to the employer
premiums for such insurance for the remainder of such severance
period;
(iii) vesting as of the last day of his employment in any unvested
portion of any stock option and any restricted stock previously issued
to ▇▇. ▇▇▇▇▇▇▇; and
(iv) a pro-rata share of any bonus to which ▇▇. ▇▇▇▇▇▇▇ otherwise
would have been entitled for the fiscal year in which his employment
terminates without Cause or for Good Reason. Such pro-rated bonus
shall be paid to ▇▇. ▇▇▇▇▇▇▇ within sixty (60) days following the end
of the fiscal year in which such termination occurs.
(d) Termination Following Change in Control.
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(i) If, by giving sixty (60) days written notice commencing within
twelve (12) months following a Change in Control, Crestline (or its
successor) terminates ▇▇. ▇▇▇▇▇▇▇' employment without Cause or ▇▇.
▇▇▇▇▇▇▇ terminates his employment for any reason, he shall be entitled
to the Severance Payment, continued insurance benefits, accelerated
vesting and pro-rated bonus set forth in Section 6(c). For purposes of
this Agreement, a "Change in Control" shall mean any of the
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following events:
(A) The ownership or acquisition (whether by a merger
contemplated by Section 6(d)(i)(B) below, or otherwise)
by any Person (other than a Qualified Affiliate), in a
single transaction or a series of related or unrelated
transactions, of Beneficial Ownership of thirty-five
percent (35%) or more of (1) Crestline's outstanding
common stock (the "Common Stock") or (2) the combined
voting power of Crestline's outstanding securities
entitled to vote generally in the election of directors
(the "Outstanding Voting Securities");
(B) The merger or consolidation of Crestline with or
into any other Person other than a Qualified Affiliate,
if, immediately following the effectiveness of such
merger or consolidation, Persons who did not
Beneficially Own Outstanding Voting Securities
immediately before the effectiveness of such merger or
consolidation directly or indirectly Beneficially Own
more than thirty-five percent (35%) of the outstanding
shares of voting stock of the surviving entity of such
merger or consolidation (including for such purpose in
both the numerator and denominator, shares of voting
stock issuable upon the exercise of then outstanding
rights (including conversion rights), options or
warrants) ("Resulting Voting Securities"), provided
that, for purposes of this Section 6(d)(i)(B), if a
person who Beneficially Owned Voting Securities
immediately before the merger or consolidation
Beneficially Owns a greater number of the Resulting
Voting Securities immediately after the merger or
consolidation than the number the Person received
solely as a result of the merger or consolidation, that
greater number will be treated as held by a Person who
did not Beneficially Own Voting Securities before the
merger or consolidation, and provided further that such
merger or consolidation would also constitute a Change
in Control if it would satisfy the foregoing test if
rights, options and warrants were not included in the
calculation;
(C) Any one or a series of related sales or
conveyances to any Person other than any one or more
Qualified Affiliates of all or substantially all of the
assets of Crestline, but excluding sales or conveyances
in connection with either the normal expiration or
other termination of Crestline's hotel leases with Host
Marriott Corporation or the affiliates of Host Marriott
Corporation, or the termination of such hotel leases
following a Tax Law change, as defined herein;
(D) Incumbent directors cease to be a majority of the
members of the Board, where an "Incumbent Director" is
(1) an individual
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who is a member of the Board on the effective date of
this Agreement or (2) any new director whose
appointment or election by the Board or whose
nomination for election by the stockholders was
approved by a majority of the persons who were already
Incumbent Directors, other than any individual who
assumes office initially as a result of an actual or
threatened election contest with respect to the
election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board;
(E) Any other event that the Board determines, in its
discretion and with reference to "Change in Control,"
would materially alter the structure or business of the
Company or its ownership; or
(F) A Change in Control shall also be deemed to have
occurred immediately before the completion of a tender
offer for Crestline's securities representing more than
thirty five percent (35%) of the Outstanding
Securities, other than a tender offer by a Qualified
Affiliate.
(G) For purposes of this Agreement, the following
definitions shall apply:
(1) "Beneficial Ownership," "Beneficially Owned"
and "Beneficially Owns" shall have the meanings
provided in Exchange Act Rule 13d-3;
(2) "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended;
(3) "Person" shall mean any individual, entity,
or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act), including any natural
person, corporation, trust, association, company,
partnership, joint venture, limited liability company,
legal entity of any kind, government, or political
subdivision, agency or instrumentality of a government,
as well as two or more Persons acting as a partnership,
limited partnership, syndicate or other group for the
purpose of acquiring, holding or disposing of Crestline
securities; and
(4) "Qualified Affiliate" shall mean (i) any directly
or indirectly wholly owned subsidiary of Crestline,
(ii) any employee benefit plan (or related trust)
sponsored or maintained by Crestline or by any entity
controlled by Crestline; or (iii) 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
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Securities Act of 1933) of Crestline as indicated in
its most recent securities filing made before the date
of the transaction.
(ii) (A) In the event that any Severance Payment, insurance benefits,
accelerated vesting, pro-rated bonus or other benefit payable to ▇▇.
▇▇▇▇▇▇▇ shall (1) constitute "parachute payments" within the meaning
of Section 280G (as it may be amended or replaced) of the Internal
Revenue Code (the "Code") ("Parachute Payments") and (2) be subject to
the excise tax imposed by Section 4999 (as it may be amended or
replaced) of the Code ("the Excise Tax"), then Crestline shall pay to
▇▇. ▇▇▇▇▇▇▇ an additional amount (the "Gross-Up Amount") such that the
net benefits retained by ▇▇. ▇▇▇▇▇▇▇ after the deduction of the Excise
Tax (including interest and penalties) and any federal, state or local
income taxes (including interest and penalties) upon the Gross-Up
Amount shall be equal to the benefits that would have been delivered
hereunder had the Excise Tax not been applicable and the Gross-Up
Amount not paid.
(B) For purposes of determining the Gross-Up Amount: (1)
Parachute Payments provided under arrangements with ▇▇. ▇▇▇▇▇▇▇ other
than the Plan and this Agreement, if any, shall be taken into account
in determining the total amount of Parachute Payments received by ▇▇.
▇▇▇▇▇▇▇ so that the amount of excess Parachute Payments that are
attributable to provisions of the Plan and Agreement is maximized; and
(2) ▇▇. ▇▇▇▇▇▇▇ shall be deemed to pay federal, state and local income
taxes at the highest marginal rate of taxation for ▇▇. ▇▇▇▇▇▇▇'
taxable year in which the Parachute Payments are includable in ▇▇.
▇▇▇▇▇▇▇' income for purposes of federal, state and local income
taxation.
(C) The determination of whether the Excise Tax is payable, the
amount thereof, and the amount of any Gross-Up Amount shall be made in
writing in good faith by a nationally recognized independent certified
public accounting firm approved by Crestline and ▇▇. ▇▇▇▇▇▇▇, such
approval not to be unreasonably withheld (the "Accounting Firm"). If
such determination is not finally accepted by the Internal Revenue
Service (or state or local revenue authorities) on audit, then
appropriate adjustments shall be computed based upon the amount of
Excise Tax and any interest or penalties so determined; provided,
however, that ▇▇. ▇▇▇▇▇▇▇ in no event shall owe Crestline any interest
on any portion of the Gross-Up Amount that is returned to Crestline.
For purposes of making the calculations required by this Section
6(d)(ii), to the extent not otherwise specified herein, reasonable
assumptions and approximations may be made with respect to applicable
taxes and reasonable, good faith interpretations of the Code may be
relied upon. Crestline and ▇▇. ▇▇▇▇▇▇▇ shall furnish such information
and documents as may be reasonably requested in connection with the
performance of the calculations under this Section 6(d)(ii). Crestline
shall bear all costs incurred in connection with the performance of
the calculations contemplated by this Section 6(d)(ii). Crestline
shall pay the Gross-Up Amount to ▇▇. ▇▇▇▇▇▇▇ no later than sixty (60)
days following receipt of the Accounting Firm's determination of the
Gross-Up Amount.
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(e) Termination Following Tax Law Change. If, by giving sixty (60) days
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written notice commencing within twelve (12) months following a Tax Law
Change, Crestline terminates ▇▇. ▇▇▇▇▇▇▇' employment without Cause or ▇▇.
▇▇▇▇▇▇▇ terminates his employment for any reason, he shall be entitled to
the Severance Payment, accelerated vesting and pro-rated bonus set forth in
Section 6(c). For purposes of this Agreement, a "Tax Law Change" shall
mean any change in the Code (including, without limitation, a change in the
United States Treasury regulations promulgated thereunder), or in the
judicial or administrative interpretations of the Code, which would permit
Host Marriott Corporation or another entity or entities in which Host
Marriott Corporation owns a substantial economic interest to operate all or
substantially all the hotels owned by Host Marriott Corporation or such
affiliated entity or entities without adversely affecting Host Marriott
Corporation's qualification for taxation as a real estate investment trust
under applicable Code provisions.
(f) Termination In the Event of Death or Disability.
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(i) If ▇▇. ▇▇▇▇▇▇▇' employment terminates in the event of his death,
any unvested portion of any stock option and any restricted stock
previously issued to ▇▇. ▇▇▇▇▇▇▇ shall become fully vested as of the
date of his death. In addition, ▇▇. ▇▇▇▇▇▇▇' estate shall be entitled
to receive a pro-rata share of any performance bonus to which he
otherwise would have been entitled for the fiscal year in which his
death occurs.
(ii) In the event ▇▇. ▇▇▇▇▇▇▇' employment terminates due to his
Disability, he shall be entitled to receive his Base Salary until such
date as he shall commence receiving disability benefits pursuant to
any long-term disability insurance provided to him by Crestline. In
addition, as of the effective date of the termination notice specified
in Section 5(d), ▇▇. ▇▇▇▇▇▇▇ shall vest in any unvested portion of any
stock option and any restricted shares previously granted to him by
Crestline. ▇▇. ▇▇▇▇▇▇▇ also shall be entitled to receive a pro-rata
share of any performance bonus to which he otherwise would have been
entitled for the fiscal year in which his employment terminates due to
his Disability.
7. Confidentiality
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(a) Definition of Proprietary Information. ▇▇. ▇▇▇▇▇▇▇ acknowledges that
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he may be furnished or may otherwise receive or have access to confidential
information which relates to Crestline's 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,
asset management agreements 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 Crestline,
or of a third party which provided proprietary information to Crestline on
a confidential basis. All such information, including any materials or
documents containing such information, shall be considered by
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Crestline and ▇▇. ▇▇▇▇▇▇▇ as proprietary and confidential (the "Proprietary
Information").
(b) Exclusions. Notwithstanding the foregoing, Proprietary Information
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shall not include (i) information disseminated by Crestline 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 ▇▇. ▇▇▇▇▇▇▇ or any
other person.
(c) Obligations. Both during and after the Employment Period, ▇▇. ▇▇▇▇▇▇▇
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agrees 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, ▇▇. ▇▇▇▇▇▇▇ shall not
(i) disclose or disseminate the Proprietary Information to any third party,
including employees of Crestline without a legitimate business need to
know; (ii) remove the Proprietary Information from Crestline's premises
without a valid business purpose; or (iii) use the Proprietary Information
for his own benefit or for the benefit of any third party.
(d) Return of Proprietary Information. ▇▇. ▇▇▇▇▇▇▇ acknowledges and agrees
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that all the Proprietary Information used or generated during the course of
working for Crestline is the property of Crestline. ▇▇. ▇▇▇▇▇▇▇ agrees to
deliver to Crestline all documents and other tangibles (including diskettes
and other storage media) containing the Proprietary Information at any time
upon request by the Board of Directors during his employment and
immediately upon termination of his employment.
8. Noncompetition
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(a) Restriction on Competition. For twelve (12) months following the
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expiration or termination of ▇▇. ▇▇▇▇▇▇▇' employment by Crestline for any
reason (the "Restricted Period"), ▇▇. ▇▇▇▇▇▇▇ 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 of the following: (i) acting
as a lessee for public or private real estate investment trusts; (ii) asset
management for hotel, independent living, assisted living or health-care
communities, or (iii) any other business that Crestline conducts as of the
date of ▇▇. ▇▇▇▇▇▇▇' termination of employment; provided, however, ▇▇.
▇▇▇▇▇▇▇ shall not be deemed to have violated this Section 8(a) solely by
reason of his ownership of five percent (5%) or less of the outstanding
stock of any publicly traded corporation or other entity.
(b) Non-Solicitation of Clients. During the Restricted Period, ▇▇. ▇▇▇▇▇▇▇
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agrees not to solicit, directly or indirectly, on his own behalf or on
behalf of any other person(s), any client of Crestline to whom Crestline
had provided services at any time during ▇▇. ▇▇▇▇▇▇▇' employment with
Crestline in any line of business that Crestline conducts as of the date of
▇▇. ▇▇▇▇▇▇▇' termination of employment or that Crestline is actively
soliciting, for the purpose of marketing or providing any service
competitive with any service then offered by Crestline.
(c) Non-Solicitation of Employees. During the Restricted Period, Mr.
-----------------------------
▇▇▇▇▇▇▇ agrees that he will not, directly or indirectly, hire or attempt to
hire or cause any business, other
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than an affiliate of Crestline, to hire any person who is then or was at
any time during the preceding six (6) months an employee of Crestline and
who is at the time of such hire or attempted hire, or was at the date of
such employee's separation from Crestline, either (i) in Grade Level 56 or
above, or (ii) a Crestline director, vice president, senior vice president
or executive vice president.
(d) Acknowledgement. ▇▇. ▇▇▇▇▇▇▇ acknowledges that he will acquire much
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Proprietary Information concerning the past, present and future business of
Crestline as the result of his employment, as well as access to the
relationships between Crestline and its clients and employees. ▇▇. ▇▇▇▇▇▇▇
further acknowledges that the business of Crestline is very competitive and
that competition by him in that business during his employment, or after
his employment terminates, would severely injure Crestline. ▇▇. ▇▇▇▇▇▇▇
understands and agrees that the restrictions contained in this Section 8
are reasonable and are required for Crestline's legitimate protection, and
do not unduly limit his ability to earn a livelihood.
(e) Exception. Notwithstanding any other provision of this Agreement, Mr.
---------
▇▇▇▇▇▇▇ shall not be subject to the provisions of Section 8(a)-(d) of this
Agreement if his employment is terminated by Crestline (or its successor)
or ▇▇. ▇▇▇▇▇▇▇ following a Change in Control in accordance with Section
6(d) or following a Tax Law Change in accordance with Section 6(e) of this
Agreement.
9. Employee Representation
-----------------------
▇▇. ▇▇▇▇▇▇▇ represents and warrants to Crestline 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.
10. Arbitration
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(a) Any disputes between Crestline and ▇▇. ▇▇▇▇▇▇▇ in any way concerning
▇▇. ▇▇▇▇▇▇▇' employment, the termination of his employment, this Agreement
or its enforcement shall be submitted at the initiative of either party to
mandatory arbitration in Maryland before a single arbitrator pursuant to
the Commercial 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 in the State of Maryland. The parties irrevocably consent to the
jurisdiction of the federal and state courts located in Maryland for this
purpose. Each party shall be responsible for its or his own costs incurred
in such arbitration and in enforcing any arbitration award, including
attorneys' fees and expenses.
(b) Notwithstanding the foregoing, Crestline, in its sole discretion, may
bring an action in any court of competent jurisdiction to seek injunctive
relief and such other relief as Crestline shall elect to enforce ▇▇.
▇▇▇▇▇▇▇' covenants in Sections 7 and 8 of this Agreement.
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11. Miscellaneous
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(a) Notices. All notices required or permitted under this Agreement shall
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be 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 Crestline, to:
Crestline Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
Fax No. 240/▇▇▇-▇▇▇▇
(ii) If to ▇▇. ▇▇▇▇▇▇▇, to:
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
19205 Autumn ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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 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 constitutes the entire agreement
----------------
between the parties and supersedes 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
---------
instrument executed by both Crestline and ▇▇. ▇▇▇▇▇▇▇.
(e) Governing Law. This Agreement shall be construed, interpreted and
-------------
enforced in accordance with the laws of the State of Maryland, without
regard to its conflicts of laws principles.
(f) Successors and Assigns. This Agreement shall be binding upon and inure
----------------------
to the benefit of both parties and their respective successors and assigns,
including any entity with which or into which Crestline may be merged or
which may succeed to its assets or business or any entity to which
Crestline may assign its rights and obligations under this Agreement;
provided, however, that the obligations of ▇▇. ▇▇▇▇▇▇▇ are personal and
shall not be assigned or delegated by him.
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(g) Waiver. No delays or omission by Crestline or ▇▇. ▇▇▇▇▇▇▇ in
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exercising any right under this Agreement shall operate as a waiver of that
or any other right. A waiver or consent given by Crestline or ▇▇. ▇▇▇▇▇▇▇
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.
(h) Captions. The captions appearing in this Agreement are for convenience
--------
of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
(i) Severability. In case any provision of this Agreement shall be held by
------------
a 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.
(j) Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ CRESTLINE CAPITAL CORPORATION
________________________________ By: ________________________________
▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
Senior Vice President
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