EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT, is dated effective as of August 10, 2006
("Effective Date") by and between Red Lion Hotels Corporation, a Washington
corporation (the "Company"), and Xxxxxx X. XxXxxxxxx (the "Executive"),
supersedes any prior employment agreements and replaces that certain Executive
Employment Agreement between the Executive and the Company dated May 21, 2003.
The Company desires to employ the Executive in the capacities of Senior Vice
President, General Counsel , and the Executive desires to be so employed, on the
terms and subject to the conditions set forth in this agreement (the
"Agreement");
Now, therefore, in consideration of the mutual covenants set forth herein and
other good and valuable consideration the parties hereto hereby agree as
follows:
1. EMPLOYMENT; TERM.
The Company employs the Executive, and the Executive agrees to be employed
by the Company, upon the terms and subject to the conditions set forth herein,
for a term commencing on the Effective Date and terminating on December 31, 2007
unless terminated earlier in accordance with Section 5 of this Agreement;
provided, that such term shall automatically be extended from time to time for
additional periods of one calendar year from the date on which it would
otherwise expire unless the Executive, on one hand, or the Company, on the
other, gives notice to the other party or parties not less than 120 days prior
to such date that it elects to permit the term of this Agreement to expire
without extension on such date. (The initial term of this Agreement as the same
may be extended in accordance with the terms of this Agreement is hereinafter
referred to as the "Term").
2. POSITIONS; CONDUCT.
(a) During the Term, the Executive will hold the title and office of, and serve
in the position of, Senior Vice President, General Counsel of the Company. The
Executive shall report to the Chief Executive Officer of the Company and shall
perform such specific duties and services (including service as an officer,
director or equivalent position of any direct or indirect subsidiary without
additional compensation) as the Company shall reasonably request consistent with
the Executive's position.
(b) During the Term, the Executive agrees to devote his full business time and
attention to the business and affairs of the Company and to faithfully and
diligently perform, to the best of his ability, all of his duties and
responsibilities hereunder. Nothing in this Agreement shall preclude the
Executive from devoting reasonable time and attention to the following (the
"Exempted Activities"): (i) serving, with the approval of the Chief Executive
Officer of the Company, as an officer, director, trustee or member of any
organization, (ii) engaging in charitable and community activities and (iii)
managing his personal investments and affairs. In no event shall the Exempted
Activities involve any material conflict of interest with the interests of the
Company or, individually or collectively, interfere materially with the
performance by the Executive of his duties and responsibilities under this
Agreement.
(c) The Executive's office and place of rendering his services under this
Agreement shall be in the principal executive offices of the Company. During the
Term, the Company shall provide the Executive with executive office space, and
administrative and secretarial assistance and other support services consistent
with his positions and with his duties and responsibilities hereunder.
----------
Xxxxxx X. XxXxxxxxx Executive Employment Agreement Page 1
3. BOARD OF DIRECTORS; COMMITTEES.
It is understood that the right to elect directors of the Company is by
law vested in the stockholders and directors of the Company, and it is mutually
contemplated that service on the Board of Directors of the Company or any of its
subsidiaries or on any respective committee of the Board of Directors of the
Company or any of its subsidiaries is not a condition of this Agreement.
4. SALARY; ADDITIONAL COMPENSATION; PERQUISITES AND BENEFITS.
(a) During the Term, the Company will pay the Executive a base salary at an
annual rate of not less than $159,500 per annum, subject to annual review by the
Compensation Committee of the Board of Directors of the Company (the
"Compensation Committee") and in the discretion of such Committee, increased
from time to time. Once increased, such base salary may not be decreased. Such
salary shall be paid in periodic installments in accordance with the Company's
standard practice, but not less frequently than semi-monthly.
(b) During the Term, Executive shall be eligible to receive a cash bonus
("Bonus") as follows: Executive shall participate in such annual Bonus plans or
programs as may be adopted by the Company's Compensation Committee (collectively
with any of its successors in authority, the "Committee") from time to time for
senior executives, provided, however, that conditioned upon attainment of target
performance measure requirements based on one or more performance measures as
may be determined by the Committee, the target Bonus for each calendar year
during the Term for which Executive shall be eligible shall be 30% of
Executive's base salary.
(c) The Board (or the committee to which it has delegate applicable authority)
in its sole discretion may award any additional or other amounts of cash,
restricted stock or Options or other equity based awards in respect of any whole
or partial year during the Term.
(d) The Company will reimburse the Executive, in accordance with its standard
policies from time to time in effect, for all out-of-pocket business expenses as
may be incurred by the Executive in the performance of his duties under this
Agreement.
(e) The Executive shall be entitled to vacation time to be credited and taken in
accordance with the Company's policy from time to time in effect for senior
executives, which in any event shall not be less than a total of four weeks per
calendar year.
(f) The Company shall indemnify the Executive to the fullest extent permitted
under the law of the State of Washington.
5. TERMINATION
(a) The Term will terminate upon the Executive's death or, upon notice by the
Company or the Executive to the other, in the case of a determination of the
Executive's Disability. As used herein the term "Disability" means the
Executive's inability to perform his duties and responsibilities under this
Agreement for a period of more than 120 consecutive days, or for more than 180
days, whether or not continuous, during any 365-day period, due to physical or
mental incapacity or impairment. A determination of Disability will be made by a
physician satisfactory to both the Executive and the Company; provided that if
they cannot agree as to a physician, then each shall select a physician and
these two together shall select a third physician whose determination of
Disability shall be binding on the Executive and the Company. Should the
Executive become incapacitated, his employment shall continue and all base and
other compensation due the Executive hereunder shall continue to be paid through
the date upon which the Executive's employment is terminated for Disability in
accordance with this section.
----------
Xxxxxx X. XxXxxxxxx Executive Employment Agreement Page 2
(b) The Term may be terminated by the Company upon notice to the Executive upon
the occurrence of any event constituting "Cause" as defined herein.
(c) The Term may be terminated by the Executive upon notice to the Company
within six months of the occurrence of any event constituting "Good Reason" as
defined herein.
6. SEVERANCE.
(a) If the Term is terminated by the Company for Cause, the Company will pay to
the Executive an aggregate amount equal to the Executive's accrued and unpaid
base salary through the date of such termination, additional salary payments in
lieu of the Executive's accrued and unused vacation time, unreimbursed business
expenses, unreimbursed medical, dental and other employee benefit expenses in
accordance with the applicable plans, and any and all other benefits provided
under the terms of applicable employee plans to terminated employees (the
"Standard Termination Payments").
(b) If the Term is terminated upon the Executive's death or Disability, the
Company and the Subsidiary will pay to the Executive's estate or the Executive,
as the case may be, the Standard Termination Payments and all death or
disability payments or other employee benefits under their employee benefit
plans.
(c) Subject to Section 6(d), if the Company terminates the Executive's
employment under this Agreement without Cause other than by reason of his death
or Disability or if the Executive terminates his employment hereunder for Good
Reason, the Company shall (i) pay the Executive the Standard Termination
Payments, (ii) pay the Executive a lump sum payment equal to the Executive's
total cash compensation for the previous fiscal year (but not less than
$159,500) and (iii) continue in effect the Executive's benefits with respect to
life, health and insurance plans or their equivalent for one year. Such payments
and the obligations set forth below in Section 6(e) shall be the Company's only
obligations to Executive in such a case. The Company shall incur no further
liability for such a termination.
(d) If the Term is not extended pursuant to the proviso to Section 1 as a result
of the Company giving notice thereunder that it elects to permit the term of
this Agreement to expire without extension, the Company shall (i) pay the
Executive the Standard Termination Payments, (ii) pay the Executive a lump sum
payment equal to the Executive's total cash compensation for the previous fiscal
year (but not less than $159,500) and (iii) continue in effect the Executive's
benefits with respect to life, health and insurance plans or their equivalent
for one year. Such payments and the obligations set forth below in Section 6(e)
shall be the Company's only obligations to Executive in such a case. The Company
shall incur no further liability for such a termination.
(e) If the Company terminates the Executive's employment under this Agreement
without Cause other than by reason of his death or Disability, or if the Term is
not extended as a result of the Company giving notice that it elects to permit
the term of this Agreement to expire without extension, or if the Executive
terminates his employment hereunder for Good Reason pursuant to Section 5(c):
all stock options granted to the Executive shall immediately vest and be
exercisable and any stock grant to the Executive shall immediately vest, all
Company imposed restrictions on restricted stock issued to the Executive shall
be terminated and all restricted stock awarded to Executive but not yet issued
shall be promptly issued to Executive.
(f) As used herein, the term "Cause" means: (i) the Executive's willful and
intentional failure or refusal to perform or observe any of his material duties,
responsibilities or obligations set forth in this Agreement, if such breach is
not cured within 30 days after notice thereof to the Executive by the Company,
which notice shall state that such conduct shall, without cure, constitute Cause
and makes specific reference to this Section 6(g); (ii) any willful and
intentional act of the Executive involving fraud, theft, embezzlement or
dishonesty affecting the Company; or (iii) the Executive's conviction of (or a
plea of nolo contendere to) an offense which is a felony in the jurisdiction
involved.
----------
Xxxxxx X. XxXxxxxxx Executive Employment Agreement Page 3
(g) As used herein, the term "Good Reason" means the occurrence of any of the
following, without the prior written consent of the Executive: (i) assignment to
the Executive of duties materially inconsistent with the Executive's positions
and responsibilities as described in Section 2(a) hereof; (ii) the removal of
the Executive from the position as described in Section 2(a); (iii) any material
breach of this Agreement by the Company which is continuing; or (iv) a Change in
Control; provided that a Change of Control shall only constitute Good Reason if,
within 18 months after such Change of Control: (a) the Company changes its
headquarters office location to a location more than 40 miles from the city
limits of Spokane, Washington, (b) the Company changes Executive's job titles,
or (c) Executive experiences a significant diminution in his duties or
responsibilities or compensation compared to prior to the Change in Control,
other than in connection with the termination of the Executive's employment for
Cause, Disability or as a result of the Executive's death or by the Executive
other than for Good Reason. Notwithstanding anything to the contrary in this
Section 6(g), the Executive shall not be deemed to have Good Reason unless the
Executive gives the Company written notice that the specified conduct or event
has occurred giving rise to Executive having Good Reason, and the Company fails
to cure such conduct or event within thirty (30) days after the receipt of such
notice.
(h) As used herein, the term "Change of Control" means the occurrence of any one
of the following events: (i) the majority of the Board of Directors of the
Company consists of individuals other than Incumbent Members, which shall mean
the members of the Company's Board of Directors on the Effective Date; provided
that any person becoming a director subsequent to the Effective Date whose
election or nomination for election was supported by the Executive or a majority
of the directors who then comprised the Incumbent Directors shall be considered
an Incumbent Director; (ii) the Company adopts a plan of liquidation providing
for the distribution of all or substantially all of the assets of the Company on
a consolidated basis; or (iii) the Company sells all or substantially all of its
assets on a consolidated basis in a single transaction or series of
transactions. As used herein, an Affiliate of a person or other entity means a
person or other entity that directly or indirectly controls, is controlled by or
is under common control with the person or other entity specified (including
without limitation any investment entity managed by the person or other entity
specified or a person or entity that directly or indirectly controls, is
controlled by or under common control with the person or other entity
specified).
(i) The amounts required to be paid and the benefits required to be made
available to the Executive under this Section 6 are absolute. Under no
circumstances shall the Executive, upon the termination of his employment
hereunder, be required to seek alternative employment and, in the event that the
Executive does secure other employment, no compensation or other benefits
received in respect of such employment shall be set-off or in any other way
limit or reduce the obligations of the Company and the Subsidiary under this
Section 6.
7. CONFIDENTIAL INFORMATION.
(a) The Executive acknowledges that the Company and its Affiliates own and have
developed and compile, and will in the future own, develop and compile certain
Confidential Information and that during the course of his rendering services to
the Company Confidential Information has and will be disclosed to the Executive
by the Company and its Affiliates. The Executive hereby agrees that, during the
Term (except as required to conduct the business of the Company) and thereafter,
he will not in any way use or disclose, furnish or make accessible to anyone,
directly or indirectly, any Confidential Information of the Company or its
Affiliates.
(b) As used herein, the term "Confidential Information" means any trade secrets,
confidential or proprietary information, or other knowledge, know-how,
information, documents or materials, owned, developed or possessed by a Company
Affiliate pertaining to its businesses the confidentiality of which such company
takes reasonable measures to protect, including, but not limited to, trade
secrets, techniques, know-how (including designs, plans, procedures, processes
and research records), software, computer programs, innovations, discoveries,
improvements, research, developments, test results, reports, specifications,
data, formats, marketing data and business plans and strategies, business
opportunities,
----------
Xxxxxx X. XxXxxxxxx Executive Employment Agreement Page 4
guest lists, vendor terms, agreements and other forms of documents, expansion
plans, budgets, projections, and salary, staffing and employment information.
Notwithstanding the foregoing, Confidential Information shall not in any event
include information which (i) was generally known or generally available to the
public prior to its disclosure to the Executive, (ii) becomes generally known or
generally available to the public subsequent to its disclosure to the Executive
through no wrongful act of the Executive, (iii) is or becomes available to the
Executive from sources other than the Company Affiliates which sources are not
known to the Executive to be under any duty of confidentiality with respect
thereto or (iv) the Executive is required to disclose by applicable law or
regulation or by order of any court or federal, state or local regulatory or
administrative body (provided that the Executive provides the Company with prior
notice of the contemplated disclosure and reasonably cooperates with the
Company, at the Company's sole expense, in seeking a protective order or other
appropriate protection of such information).
8. RESTRICTIVE COVENANTS.
(a) The Executive agrees that during his employment hereunder and for a period
of twelve months thereafter the Executive will not, directly or indirectly,
engage or participate or make any financial investments in (other than ownership
of up to 5% of the aggregate of any class of securities of any corporation if
such securities are listed on a national stock exchange or under section 12(g)
of the Securities Exchange Act of 1934) or become employed by, or act as an
agent or principal of, or render advisory or other management services to or
for, any Competing Business. As used herein the term "Competing Business" means
any business which includes hotel ownership, hotel management, hotel services or
hotel franchising and has a headquarters in Washington, Oregon, Idaho, Montana,
Utah or Northern California, defined as the area from San Jose, California north
to California's border with Oregon.
(b) The Executive agrees that during his employment hereunder and for a period
of twenty-four months thereafter he will not solicit, raid, entice or induce any
person that then is or at any time during the twelve-month period prior to the
end of the Term was an employee of the Company or a Company Affiliate (other
than a person whose employment with such Company Affiliate has been terminated
by such Company Affiliate), to become employed by any person, firm or
corporation.
9. SPECIFIC PERFORMANCE.
(a) The Executive acknowledges that the services to be rendered by him hereunder
are of a special, unique, extraordinary and personal character and that the
Company Affiliates would sustain irreparable harm in the event of a violation by
the Executive of Section 7 or 8 hereof. Therefore, in addition to any other
remedies available, the Company shall be entitled to specific enforcement and/or
an injunction from any court of competent jurisdiction restraining the Executive
from committing or continuing any such violation of this Agreement without
proving actual damages or posting a bond or other security. Nothing herein shall
be construed as prohibiting the Company from pursuing any other remedies
available to it for such breach or threatened breach, including the recovery of
damages.
(b) If any of the restrictions on activities of the Executive contained in
Sections 7 or 8 shall for any reason be held by a court of competent
jurisdiction to be excessively broad as to duration, geographical scope or
activity of subject, such restrictions shall be construed so as thereafter to be
limited or reduced to be enforceable to the maximum extent compatible with the
applicable law as it shall then appear; it being understood that by the
execution of this Agreement the parties hereto regard such restrictions as
reasonable and compatible with their respective rights.
(c) Notwithstanding anything in this Agreement to the contrary, in the event
that the Company fails to make any payment of any amounts or provide any of the
benefits to the Executive when due as called for under Section 6 of this
Agreement and such failure shall continue for twenty (20) days after notice
thereof
----------
Xxxxxx X. XxXxxxxxx Executive Employment Agreement Page 5
from the Executive, all restrictions on the activities of the Executive under
Sections 7 and 8 shall be immediately and permanently terminated.
10. WITHHOLDING.
The parties agree that all payments to be made to the Executive by the Company
pursuant to the Agreement shall be subject to all applicable withholding
obligations of such company.
11. NOTICES.
All notices required or permitted hereunder shall be in writing and shall be
deemed given and received when delivered personally, four days after being
mailed if sent by registered or certified mail, postage pre-paid, or by one day
after delivery if sent by air courier (for next-day delivery) with evidence of
receipt thereof or by facsimile with receipt confirmed by the addressee. Such
notices shall be addressed respectively:
IF TO THE EXECUTIVE, to:
Xxxxxx X. XxXxxxxxx
000 X 0xx
Xxxxxxx, XX 00000
IF TO THE COMPANY, to:
Red Lion Hotels Corporation
000 X. Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
or to any other address of which such party may have given notice to the other
parties in the manner specified above.
12. MISCELLANEOUS.
(a) This Agreement is a personal contract calling for the provision of unique
services by the Executive, and the Executive's rights and obligations hereunder
may not be sold, transferred, assigned, pledged or hypothecated by the
Executive. The rights and obligations of the Company hereunder will be binding
upon and run in favor of their respective successors and assigns.
(b) This Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of Washington.
(c) Any controversy arising out of or relating to this Agreement or any breach
hereof shall be settled by arbitration in Spokane, Washington by a single
neutral arbitrator who shall be a retired federal or state court judge in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association and judgment upon any award rendered may be entered in any court
having jurisdiction thereof, except in the event of a controversy relating to
any alleged violation by the Executive of Section 7 or 8 hereof, the Company and
the Subsidiary shall be entitled to seek injunctive relief from a court of
competent jurisdiction without the requirement to seek arbitration. In addition
to all other relief, the substantially prevailing party in any arbitration or
court action shall be entitled to their reasonable attorney fees and costs
incurred by reason of the controversy (including any appellate review and
bankruptcy or enforcement proceedings).
(d) The headings of the various sections of this Agreement are for convenience
of reference only and shall not define or limit any of the terms or provisions
hereof.
----------
Xxxxxx X. XxXxxxxxx Executive Employment Agreement Page 6
(e) The provisions of this Agreement which by their terms call for performance
subsequent to the expiration or termination of the Term shall survive such
expiration or termination.
(f) Upon the Effective Date, this Agreement supersedes any existing employment
agreements between the Employee and the Company and any of its Affiliates all of
which shall be terminated upon the Commencement Date of this Agreement.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS OF THE
EFFECTIVE DATE FIRST ABOVE WRITTEN.
EXECUTIVE: COMPANY:
RED LION HOTELS CORPORATION
/s/ Xxxxxx X. XxXxxxxxx By /s/ Xxxxxx Xxxxxx
----------------------- ---------------------------------
Xxxxxx X. XxXxxxxxx Xxxxxx Xxxxxx, President and
Chief Executive Officer
----------
Xxxxxx X. XxXxxxxxx Executive Employment Agreement Page 7
