Exhibit 10.19
AMENDMENT TO
EMPLOYMENT AGREEMENT
This AMENDMENT TO EMPLOYMENT AGREEMENT (the "Amendment"), dated as of July
31, 1997, is entered into between AMERICAN GENERAL HOSPITALITY CORPORATION, a
Maryland corporation (the "Company"), and Xxxx X. Xxxxxxxxx ("Executive").
W I T N E S S E T H :
WHEREAS, the Company and Executive have previously entered into an
Employment Agreement (the "Agreement"), dated as of July 31, 1996; and
WHEREAS, Executive has provided valuable services to the Corporation as its
Senior Vice President -- Acquisitions; and
WHEREAS, the Company and Executive each desire to continue the employment
relation pursuant to the Agreement; and
WHEREAS, the parties also desire to make certain clarifications and
modifications to the Agreement;
NOW, THEREFORE, in consideration of the sum of $1.00 each to the other in
hand paid, the receipt whereof is hereby acknowledged and the mutual covenants
and agreements herein contained, the parties hereto agree and hereby amend those
terms and conditions of the Agreement as follows:
1. Paragraph 2 of the Agreement shall be deleted and replaced with the
following:
"Term. The term of Executive's employment under this Agreement (the
"Term") will begin on the date of this Agreement and will continue,
subject to the termination provisions set forth in paragraph 5 below,
until the fifth anniversary of the date hereof; provided, that,
commencing on the fifth anniversary of the date hereof and on each
anniversary thereafter, the Term shall be automatically extended for
one year unless either the Company or the Executive provides written
notice of non-extension at least thirty days prior to such anniversary
date."
2. Paragraph 4(d) is amended by adding the following sentence at the end
thereof:
"Notwithstanding anything herein to the contrary, upon the occurrence
of a Change of Control (as defined herein), the stock
options shall fully vest and become exercisable and the shares of
Common Stock shall fully vest and become nonforfeitable."
3. Immediately subsequent to Paragraph 5(d)(iii) of the Agreement, the
following new subparagraph shall be added:
"(iv) 'Change of Control' means any of the following events:
(A) The acquisition (other than from the Company) by any
"Person" (as the term is used for purposes of Sections 13(d) or
14(d) of the Exchange Act) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of
fifty percent (50%) or more of the combined voting power of the
Company's then outstanding voting securities; or
(B) The individuals who were members of the Board (the
"Incumbent Board") during the previous twelve (12) month period,
cease for any reason to constitute at least two-thirds of the
Board; provided, however, that if the election, or nomination for
election by the Company's stockholders, of any new director was
approved by a vote of at least two-thirds of the Incumbent Board,
such new director shall, for purposes of this Agreement, be
considered as a member of the Incumbent Board; or
(C) Approval by stockholders of the Company of (i) a merger
or consolidation involving the Company if the stockholders of the
Company, immediately before such merger or consolidation do not,
as a result of such merger or consolidation, own, directly or
indirectly, more than seventy percent (70%) of the combined
voting power of the then outstanding voting securities of the
corporation resulting from such merger or consolidation in
substantially the same proportion as their ownership of the
combined voting power of the voting securities of the Company
outstanding immediately before such merger or consolidation or
(ii) a complete liquidation or dissolution of the Company or an
agreement for the sale or other disposition of all or
substantially all of the assets of the Company.
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Notwithstanding the foregoing, a Change of Control shall not be deemed
to occur pursuant to Section 5(d)(iv)(A), solely because fifty percent
(50%) or more of the combined voting power of the Company's then
outstanding securities is acquired by (i) a trustee or other fiduciary
holding securities under one or more employee benefit plans maintained
by the Company or any of its subsidiaries or (ii) any corporation
which, immediately prior to such acquisition, is owned directly or
indirectly by the stockholders of the Company in the same proportion
as their ownership of stock in the Company immediately prior to such
acquisition."
4. Paragraph 6.b(i) of the Agreement shall be deleted and replaced in its
entirety with the following text:
"(i) the Company will pay as severance pay to Executive, not
later than the 30th day following the date of termination, a lump sum
severance payment (the "Severance Payment") equal to the greater of
(x) the aggregate of all compensation due to Executive hereunder
during the balance of the Term, assuming that the annual bonuses
payable to Executive during such period will equal the average of the
annual bonuses paid to Executive under this Agreement prior to
termination of employment, or (y) 1.99 times the "base amount" within
the meaning of Sections 280G(b)(3) and 280G(d) of the Internal Revenue
Code of 1986, as amended (the "Code"), and any applicable temporary or
final regulations promulgated thereunder, or its equivalent as
provided in any successor statute or regulation; provided, however, if
such termination occurs by the Company other than for Cause or by an
Executive for Good Reason in connection with or following a Change of
Control, the multiple 1.99 in clause (y) shall be increased to 2.99;"
5. Immediately subsequent to Paragraph 6.b(ii) of the Agreement, the following
new subparagraph shall be added in its entirety:
"(iii) Notwithstanding the previous provision, if payments made
pursuant to this Section 6 are considered "parachute payments" under
Section 280G of the Code, then the sum of such parachute payments plus
any other payments made by the Company to the Executive which are
considered parachute payments shall be limited to the greatest amount
which may be paid to the Executive under Section 280G without causing
any loss of deduction to the Company under such section.
6. All the above specified amendments, deletions and modifications to the
Agreement shall be effective as of July 31, 1997 without derogation to any
of rights or obligations of the parties
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prior to such date. All the remaining terms and conditions of the Agreement
are unmodified and in full and continuous force and effect.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Amendment on the
day and year first set forth above.
AMERICAN GENERAL HOSPITALITY CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chairman, Chief Executive Officer
and President
/s/ Xxxx X. Xxxxxxxxx
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XXXX X. XXXXXXXXX
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