EXHIBIT 10.8
WESTCOAST HOSPITALITY CORPORATION
SEPARATION AND GENERAL RELEASE AGREEMENT
This Separation and General Release Agreement (hereinafter "Agreement")
is entered into on this 31st day of July, 2003, by and between Xxxxxx Xxxxxxx
(hereinafter referred to as "Employee") and WESTCOAST HOSPITALITY CORPORATION,
including its subsidiaries and affiliates (hereinafter referred to as the
"Company").
WHEREAS, Employee was employed by Company; and
WHEREAS, Employee has expressed her desire to resign from the Company
effective August 31, 2003 on mutually agreeable terms; and;
WHEREAS, both parties wish to clearly set forth the terms and
conditions of Employee's departure from employment.
NOW, THEREFORE, for and in consideration of the mutual promises, terms
and conditions set forth below, the sufficiency of such consideration being
expressly acknowledged by the parties hereto, Company and Employee do hereby
agree as follows:
1. SEPARATION DATE. Employee's last day of employment with
Company shall be August 31, 2003. Company agrees to pay Employee her base salary
and any accrued, unused vacation through the Separation Date, and to reimburse
Employee for any reasonable business expenses Employee has incurred prior to the
Separation Date for which Employee submits appropriate documentation pursuant to
Company's reimbursement policies within 30 days of the Separation Date.
2. TRANSITION MATTERS. Employee agrees to provide reasonable
cooperation to Company with the transition of Company business both before and
after the Separation Date, provided that after the Separation Date cooperation
shall generally be limited to answering occasional telephone inquiries. In the
event any charge, complaint or lawsuit is filed against Company or any
affiliate, Employee agrees to provide reasonable cooperation to Company in the
defense of the same including , without limitation, meeting with and providing
information to Company and/or its agents and attorneys upon reasonable notice
and at mutually agreed upon times and places.
3. SEVERANCE. Employee will receive six (6) months of salary as
severance pay, in the amount of $ 80,000, less all applicable federal and state
withholdings, which shall be paid to Employee as continuing salary payments at
regular payroll dates for a period of six months beginning on the next payroll
date following the Separation Date, assuming Employee has signed and has not
revoked this Agreement. Employee agrees that she is not entitled to other
payments or benefits except as provided in this Agreement.
4. COBRA. Employee will have the right to obtain COBRA medical
benefit coverage for a period of eighteen (18) months after January 2, 2002. If
Employee elects COBRA coverage, Company will pay the premiums required to
maintain the COBRA coverage for a period equal to the earlier of six months
following the Separation Date or such date as Employee becomes eligible to
participate under another employer's medical plan. Employee agrees to notify
Company promptly upon her acceptance of other employment and , upon Company's
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request, to provide such information as is reasonably necessary to determine the
date of her eligibility for medical insurance coverage.
5. COMMUNICATION OF RESIGNATION. Company and Employee agree that
for all future purposes they will characterize Employee's separation as a
voluntary resignation. Employee agrees to obtain approval in advance from
Company's CEO of the timing and substance of any communication concerning her
resignation from the Company.
6. GENERAL RELEASE AND WAIVER. Employee, along with Employee's
successors and assigns, hereby waive, release, and forever discharge Company and
all parent, related, affiliated or subsidiary organizations, and each of their
respective directors, officers, agents, representatives, and employees, past and
present, and each of their predecessors, successors and assigns, of and from,
and covenant not to xxx with respect to any and all claims, charges, causes of
action, debts, damages, or liabilities (including attorney's fees and costs
incurred), whether known or unknown, related in any way to Employee's employment
with Company and termination thereof. This includes, but is not limited to,
claims arising under federal, state or local laws prohibiting wrongful
termination, breach of an oral or written contract, misrepresentation,
defamation, interference with contract, intentional or negligent infliction of
emotional distress, employment discrimination of all types, sexual harassment,
claims for wages and benefits and Equal Pay Act violations, or rights or claims
that have accrued prior to the execution of this Agreement under the Federal Age
Discrimination and Employment Act (29 U.S.C. Section 621, et seq., as amended by
the Older Worker's Benefit Protection Act). Furthermore, it is agreed by and
between the parties to this Agreement that this Agreement is to be in full
accord, satisfaction and settlement of all claims of every nature and kind,
including, but not limited to, compensation and benefits, arising out of or
related to employment or termination of employment with Company. This release
includes any claims pursuant to statute or otherwise for attorneys' fees and
costs, and Employee agrees that she will bear her own attorneys' fees and costs,
if any.
7. OTHER PLANS. Employee's rights, if any, under retirement,
savings or 401(k) plans of Company will be determined under the terms of those
plans as they exist on any relevant date and are not affected by this Agreement.
8. RETURN OF PROPERTY. Employee affirms that Employee will return
to Company on or before the Separation Date all Company property in Employee's
possession, including, but not limited to, credit cards, all keys to Company
buildings or property, all Company owned equipment and all Company documents and
papers, manuals, files and all other trade secrets and/or confidential Company
information.
9. REFERENCES. Should any prospective employer request any
information about Employee, Company shall comply with its verification policy by
disclosing only dates of employment and positions held.
10. NON-DISPARAGEMENT. Employee agrees not to make any statements,
verbally or in writing, about the Company and any of its officers, directors,
employees and agents in any manner that is intended to, or does, call into
question their morality, conduct, business ability, or business judgment;
provided that Employee will respond accurately and fully to any question,
inquiry or request for information when required by the legal process.
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11. NONDISCLOSURE. Employee agrees that, except as authorized in
writing by the Employer, he has not and will not directly or indirectly use,
disclose, reproduce, or in any other way publicly or privately disseminate or
discuss any "Proprietary and Confidential Information" of the Company.
Proprietary and Confidential Information shall mean all information not
generally known to the public which relates to the Company, the business or
personnel of the Company or to any third parties doing business with Company,
including but not limited to information about the Company's relationships with
governmental authorities, public and private organizations and businesses;
company strategies and business plans; customers and prospective customers;
providers or vendors; pricing, product or rating information, billing and
financial data; and sales and marketing information. Proprietary and
Confidential Information shall also include all other information that has been
treated or designated by the Company as confidential or proprietary.
12. NONSOLICITATION. For a period of one (1) year from the
Separation Date, Employee will not directly or indirectly solicit, induce,
influence or entice, or attempt to solicit, induce, influence or entice any
customer, supplier, vendor, employee or contractor of Company to cease or alter
its relationship with Company.
13. NONCOMPETITITON. For a period of one (1) year from the
Separation Date, Employee agrees that she will not, without obtaining Company's
written permission, directly or indirectly own, manage, be employed by, consult
with, perform services for, or engage in any business in Idaho, Washington,
Oregon, or Northern California which competes with the Company's business
(except that Employee shall not be restricted from owning less than 1 percent of
equity in a public corporation). For purposes of this Agreement, the Company's
business is defined to be owning and/or managing hotels.
14. NO FUTURE EMPLOYMENT WITH COMPANY. Employee agrees that she
will not apply for or seek employment with Company in the future.
15. OTHER CLAIMS. Employee represents that Employee has no pending
complaints, charges, lawsuits or claims against Company with any governmental
agency or any court.
16. KNOWING AND VOLUNTARY AGREEMENT. Employee understands and
acknowledges the significance and consequence of this Agreement, and
acknowledges that it is voluntary and has not been given as a result of any
coercion, and expressly confirms that it is to be given full force and effect
according to each and all of its express terms and provisions, including those
relating to unknown or unsuspected claims, demands, obligations and causes of
action. Employee acknowledges that Employee has been given fully opportunity to
review and consider the terms of this Agreement. Further, Employee executes this
Agreement only after full reflection, analysis, and in understanding of its
provisions.
17. NON-ADMISSION OF LIABILITY. This Agreement shall not be
construed as an admission by Company or Employee of any liability to the other,
breach of any agreement between Employee and Company, or violation by Company or
Employee of any statute, law, or regulation, nor shall it be construed as an
admission by Company or Employee of any misconduct or deficient performance.
18. APPLICABLE LAW. This Agreement is to be construed in
accordance with the laws of the State of Washington.
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19. ARBITRATION. Any controversies or claims arising out of or
related to this Agreement shall be fully and finally settled by arbitration in
Spokane, Washington, in accordance with the Employment Arbitration Rules of the
American Arbitration Association then in effect (the "AAA Rules"), conducted by
one arbitrator, either mutually agreed upon by the Company and Employee or
chosen in accordance with the AAA Rules, except that the parties shall have any
right to discovery as would be permitted by the Federal Rules of Civil Procedure
for a period of ninety (90) days following the selection and notification to the
arbitrator and the arbitrator thereof shall resolve any dispute which arises in
connection with such discovery. The prevailing party shall be entitled to
recover its costs, expenses and reasonable attorney's fees, and judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
20. SEVERABILITY. It is further understood and agreed that if any
of the provisions of this Agreement are held to be invalid and unenforceable,
the remaining provisions shall, nevertheless, continue to be valid and
enforceable.
21. ENTIRE AGREEMENT. This Agreement represents and contains the
entire understanding between the parties in connection with the subject matter
of this Agreement. All prior employment agreements, or other policies or
practices, written or oral, between Employee and Company are superseded by this
Agreement except as identified as continuing by this Agreement. This Agreement
shall not be altered or varied except in a writing signed by Employee and
Company's representative. It is expressly acknowledged and recognized by the
parties that there are no oral or written collateral agreements or
understandings between the parties other than as contained in this document.
22. NON-WAIVER OF TERMS. Failure by either party to insist upon
compliance with any term, covenant, or condition contained in this Agreement
shall not be deemed a waiver of that term, covenant, or condition, nor shall any
waiver or relinquishment of any right or power contained in this Agreement at
any one time or times be deemed a waiver or relinquishment of any right or power
at any other time or times.
23. BINDING AGREEMENT. This Agreement is binding not only on the
parties hereto, individually and collectively, but shall also be binding upon
the respective heirs, estates, personal representatives, directors, officers,
employees, agents, trustees, affiliated companies, predecessors, successors,
assigns, parent organizations, related organizations, subsidiary organizations,
all of whom are bound hereby and any person signing below on behalf of Company
freely executes this Agreement as the agent of such entity, on behalf thereof
and with full authority to do so.
24. REVIEW/REVOCATION OF AGREEMENT. Employee acknowledges that
Employee has been allowed at least twenty-one (21) days in which to consider
this Agreement. The execution of this Agreement prior to taking the full
twenty-one (21) days to consider this Agreement is done pursuant to Employee's
knowing and voluntary choice to do so. Further, this Agreement may be revoked by
Employee by written notice of revocation to and received by Mr. Art Xxxxxx,
President, WestCoast Hospitality Corporation, 000 X. Xxxxx Xxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, within seven (7) days following Employee's execution of this
Agreement. Written notice shall be deemed received three (3) days after the date
postmarked if sent by prepaid mail properly
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addressed. Unless revoked in accordance with this paragraph, the Agreement will
become final and irrevocable on the eighth (8th) day following Employee's
execution of this Agreement.
25. CONFIDENTIALITY OF AGREEMENT. Employee and Company agree that
the terms, payments and conditions provided for in this Agreement shall remain
confidential as between the parties and shall not be disclosed to any other
person, other than attorneys, accountants or other professional service
providers, to the extent necessary in their rendition of professional services
to the parties. However, disclosure may be made when either party is required to
do so pursuant to the directives, rules or regulations of any court,
governmental or regulatory body.
26. TITLES. The titles of the paragraphs of this Agreement are
inserted merely for convenience and ease of reference and shall not effect or
modify the meaning of any terms, covenants or conditions of this Agreement.
27. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall constitute the original.
PLEASE READ CAREFULLY. THIS SEPARATION AGREEMENT INCLUDES A
GENERAL RELEASE AND WAIVER OF ALL KNOWN AND UNKNOWN CLAIMS.
DATE: 7/31/03 /s/ Xxxxxx Xxxxxxx
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EMPLOYEE
DATE: 7/31/03 WESTCOAST HOSPITALITY
CORPORATION
By: /s/ Xxxxxx Xxxxxx
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Its President and CEO
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