Exhibit 10.28
EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT, is executed on May 21, 2003 and shall be
effective on July 1, 2003 ("Effective Date") by and between WestCoast
Hospitality Corporation, a Washington corporation (the "Company"), and Xxxxxx
XxXxxxxxx (the "Executive").
The Company desires to employ the Executive in the capacities of Vice President
and Assistant 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, 2004
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 titles and offices of, and
serve in the positions of, Vice President and Assistant General Counsel. On
January 1, 2004 the Company and Executive anticipate that the Executive will be
evaluated upon his performance to that date for the position of General Counsel
upon the retirement at that date from that position of the current General
Counsel. The Executive shall report to the President of the Company or such
other officer of the Company as the President shall designate 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 require 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 Board of Directors
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.
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(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.
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 or on any committee of the
Board of Directors 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 $125,000 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. The anticipation of the Company and the Executive is that upon appointment
of the Executive to the position of General Counsel on January 1, 2004, his base
salary will be increased to an annual rate of $135,000. Such salary shall be
paid in periodic installments in accordance with the Company's standard
practice, but not less frequently than semi-monthly.
(b) For each fiscal year during the Term, the Executive will be eligible to
receive a bonus on such terms as may from time to time be established by the
Compensation Committee.
(c) During the Term, the Executive will participate in all plans now existing or
hereafter adopted by the Company for the management employees or the general
benefit of the their employees, such as stock option or other incentive
compensation plans, life and health insurance plans, or other insurance plans
and benefits on the same basis and subject to the same qualifications as other
senior executive officers. To the extent permissible under such Company plans,
the Company shall waive any applicable waiting or delay period for Executive's
participation in such plans
(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.
(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
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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.
(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 one month 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 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) 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 three months' base salary if the termination
occurs prior to January 1, 2004 and six months' base salary if the termination
occurs on or after January 1, 2004.
(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 three months' base salary if the termination occurs prior
to January 1, 2004 and six months' base salary if the termination occurs on or
after January 1, 2004.
(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 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 and all Company imposed
restrictions on restricted stock issued to the Executive shall be terminated.
(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.
(g) As used herein, the term "Good Reason" means: (i.) assignment of the
Executive of duties materially inconsistent with the Executive's positions as
described in Section 2(a), provided, however, it shall not be Good Reason if the
Company creates or spins-off divisions and the Executive holds the positions
described in Section 2(a) for fewer than all of those divisions, provided the
change is not accompanied by a reduction in compensation; (ii) the change in the
location of the Company's principal executive offices to a location outside the
Spokane, Washington metropolitan area with a requirement that
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the Executive relocate without his consent; (iii) any material reduction in
Executive's base salary or benefits, unless such reduction is consistent with
Company-wide reductions in base salary or benefits for the Company's senior
executives; or (iv) any material breach of this Agreement by the Company which
is continuing.
(h) 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 under this Section 6.
7. CONFIDENTIAL INFORMATION.
(a) The Executive acknowledges that the Company and its subsidiaries or
affiliated ventures ("Company 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 for a period of three years
thereafter, he will not 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, 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 in the Territory. As used herein the term "Competing
Business" means any business then conducted by the Company which produces over
10% of the Company's revenue and the term "Territory" means any state of the
United States or province of Canada or Mexico in which the Company conducts its
business. Notwithstanding the foregoing, nothing in this Agreement shall limit
or prohibit the Executive from engaging in the Exempted Activities.
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(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 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:
Xx. Xxxxxx XxXxxxxxx
000 X 0xx
Xxxxxxx, XX 00000
IF TO THE COMPANY, to:
WestCoast Hospitality Corporation
000 X. Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: President
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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
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.
(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
DATE FIRST ABOVE WRITTEN TO BE EFFECTIVE ON THE EFFECTIVE DATE.
EXECUTIVE: COMPANY:
WESTCOAST HOSPITALITY CORPORATION
/s/ Xxxxxx XxXxxxxxx by /s/ Xxxxxx X. Xxxxxx
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Xxxxxx XxXxxxxxx Xxxxxx X. Xxxxxx, Its President
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