EXHIBIT 10.19
[LETTERHEAD OF WYNDHAM INTERNATIONAL APPEARS HERE]
March 22, 2000
Xx. Xxxxxxx X. Xxxxxx, Xx.
c/o Wyndham International, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Dear Xx. Xxxxxx:
This letter agreement (the " Agreement") confirms the agreement that we
have reached regarding the termination of your employment with Wyndham
International, Inc. ("WII") and its respective related and affiliated entities
(collectively, the "Companies") for a " Good Reason."
The purpose of this Agreement is to establish a mutually agreeable
arrangement for ending your employment. This Agreement does not constitute and
should not be construed as an admission by the Companies that they have in any
way violated any legal obligation that they owe to you or to any other person or
as an admission by you that you have in any way violated any legal obligation
that you owe to the Companies or to any other person. To the contrary, the
parties' willingness to enter into this Agreement demonstrates that they are
continuing to deal with each other fairly and in good faith.
With those understandings and in exchange for the promises set forth below,
you and the Companies agree as follows:
Termination
You hereby acknowledge that your employment with WII will terminate
effective as of April 28, 2000 (the "Date of Termination"). Any offices or
affiliations that you hold with any of the Companies will also terminate as of
the Date of Termination. You and WII acknowledge that your termination from
employment is a Termination for a Good Reason as defined by Subparagraph 6(e) of
the April 19, 1999 (Amended and Restated) Executive Employment Agreement between
you and WII (the " Employment Agreement"). You and WII acknowledge that the
"Good Reason Process" pursuant to such Subparagraph 6(e) has been satisfied in
all respects. Subject to earlier termination in accordance with Paragraph 6 of
the Employment Agreement, WII will continue your salary and benefits through the
Date of Termination pursuant to Paragraph 7(d) of the Employment Agreement and
shall pay you a pro rata bonus of Forty-Three Thousand Six Hundred Eighty
Dollars ($43,680) in respect of 2000 on the Date of Termination.
2. Compensation and Benefits
(a) Effect of Termination on Equity Grants. You understand and
acknowledge that the Option (as defined in the Employment Agreement) granted to
you on April 19, 1999 will continue to vest for 24 months following the Date of
Termination and remain exercisable thereafter in accordance with and subject to
the terms and conditions of Paragraph 3(c) of the Wyndham International, Inc.
Non-Qualified Stock Option Agreement, dated as of April 19, 1999, by and between
you and WII; all remaining unvested portions of the Option then will lapse. Your
rights to any vested stock options and other stock-based awards granted to you
by the Companies shall survive the Date of Termination in accordance and upon
the terms provided in the employee stock option or incentive plan or any
agreement or other instrument attendant thereto pursuant to which such options
or awards were granted.
(b) Severance. In recognition of your service to WII, and in full
satisfaction of any and all claims you may have against the Companies, as more
fully set forth in Paragraph 3 below, the Companies will pay you Eight Hundred
Ninety Thousand Four Hundred Dollars ($890,400) (the " Severance Payment")
subject to the conditions set forth in Paragraph 7(d)(i) of the Employment
Agreement, including but not limited, your continuing strict adherence to the
restrictions set forth in Paragraphs 4 and 5 of the Employment Agreement. You
acknowledge and agree that this Severance Payment fully and completely satisfies
the Companies' obligation to pay your severance under Paragraph (7)(d)(i) of the
Employment Agreement. The Severance Payment shall be reduced by applicable
withholdings and shall be payable as follows: Eight Hundred Ninety Thousand Four
Hundred Dollars ($890,400) in equal bi-weekly installments over a period of
twenty-four (24) months commencing on April 29,2000 (the "Severance Period"). In
the event that you commence any employment, whether as an employee or through
self-employment, during the Severance Period, the Companies shall be entitled to
set-off against the remaining installments of the Severance Payment fifty
percent (50%) of the amount of any cash compensation received by you from the
new employment. You shall provide the Companies notice of any new employment and
compensation after the Date of Termination.
(c) Health/Dental/Vision/Disability/Life Benefits.
(i) You and your eligible dependents will be eligible to receive
continuation coverage under WII's group health, dental and vision plans to
the extent authorized by and consistent with 29 U.S.C. (S) 1161 et seq.
(commonly known as "COBRA") and applicable group health, dental or vision
plan terms. To the extent you and your eligible dependents elect to
continue coverage in one or more plans under COBRA, the company will pay
the costs of such coverage(s) on your behalf until the earlier of (A)
twelve (12) months after the Date of Termination Date or (B) you become
eligible for similar coverage provided by another employer. WII will permit
you to continue coverage in one or more plans under COBRA at your own cost
until the earlier of (A)
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Page 3
twenty four (24) months after the Date of Termination Date or (B) you
become eligible for similar coverage provided by another employer.
(ii) WII will permit you continue to maintain your coverage under its
group long term disability and term life insurance plans entirely at your
own cost until the earlier of (A) twelve (12) months after the Date of
Termination Date or (B) you become eligible for similar coverage provided
by another employer.
(d) Tax Preparation. The Companies shall provide reasonable
assistance in connection with preparation of tax returns, among other support,
for a period of five (5) years beginning on the Date of Termination, in
accordance with Paragraph 7(f) of the Employment Agreement.
(e) Outplacement. WII shall pay for the reasonable costs (not to
exceed $27,000) of executive outplacement services selected by you for use in
connection with obtaining other employment for up to six (6) months from the
Date of Termination or through the date you secure new employment, whichever
occurs first.
(f) Gross Up Payment. You remain eligible for a Gross Up Payment, if
necessary, as provided for in Paragraph 8(b) of the Employment Agreement.
(g) Other Benefits. Except as expressly provided above, your
eligibility to participate in any of the Companies' respective employee benefit
plans and programs ceases on or after the Date of Termination in accordance with
the terms and conditions of each of those benefit plans and programs and your
rights to benefits under any of the employee benefit plans and programs, if any,
are governed by the terms and conditions of each of those employee benefit plans
and programs.
(h) Promissory Note. Section 3 of that certain No Personal Liability
Nonrecourse Promissory Note, dated April 19, 1999, made by you and attached to
the Employment Agreement as Exhibit B (the " Note") is hereby amended to provide
that so long as you continue to adhere strictly to your continuing obligations
under Paragraphs 4 and 5 of the Employment Agreement, as incorporated and
modified hereinbelow, WII agrees that the principal balance and accrued interest
on the Note shall not become due and payable until April 28, 2002. In the event
you breach any of your continuing obligations under Paragraphs 4 or 5 of the
Employment Agreement, as incorporated and modified hereinbelow, the principal
balance and accrued interest on the Note shall become due and payable
immediately. WII further agrees that in the event you comply faithfully with
your continuing obligations under Paragraphs 4 and 5 of the Employment
Agreement, as incorporated and modified hereinbelow,
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through April 28, 2002, the principal balance and accrued interest on the Note
shall not become due and payable until April 28, 2004.
3. Release of Claims.
You voluntarily and irrevocably release and discharge the Companies, their
related or affiliated entities, and their respective predecessors, successors,
and assigns, (including but not limited to Patriot American Hospitality, Inc.
("PAHI")), and the current and former officers, directors, shareholders,
employees, and agents of each of the foregoing (any and all of which are
referred to as "Releasees") generally from all charges, complaints, claims,
promises, agreements, causes of action, damages, and debts that relate in any
manner to your employment with or services for the Companies, known or unknown
("Claims"), which you have, claim to have, ever had, or ever claimed to have
had against any of the Releasees through the date on which you execute this
Agreement. This general release of Claims includes, without implication of
limitation, all Claims for or related to: the Employment Agreement; the
compensation provided to you by the Companies; your termination as described in
Paragraph 1; wrongful or constructive discharge; breach of contract; breach of
any implied covenant of good faith and fair dealing; tortious interference with
advantageous relations; intentional or negligent misrepresentation, fraud or
deceit; infliction of emotional distress, and unlawful retaliation or
discrimination under the common law or any federal, state or local statute or
law (including, without implication of limitation, the Employee Retirement
Income Security Act, Title VII of the Civil Rights Act of 1964, the American
with Disabilities Act, the Age Discrimination in Employment Act, Tex. Lab. Code
(s)(s)21.001, et seq., Tex. Hum. Res. Code (s)(s)121.001, et seq.). You also
waive any Claim for reinstatement, severance, incentive or retention pay (except
as expressly provided in this Agreement), attorney's fees, or costs, relating to
the above waived claims.
You agree that you will not hereafter pursue any Claim against any Releasee
by filing a lawsuit in any local, state or federal court for or on account of
anything which has occurred up to the present time as a result of your
employment, and you shall not seek reinstatement with, or damages of any nature,
severance, incentive or retention pay, attorney's fees, or costs from the
Companies or any of the other Releasees.
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4. Employment Agreement
This Agreement supersedes all provisions of the Employment Agreement other
than Paragraphs 4 (Unauthorized Disclosure), 5 (Covenant Not to Compete), 6
(Termination), 7 (Compensation Upon Termination or During Disability), 8(b)
(Gross Up Payment), 13 (Arbitration; Other Disputes) and 15 (Litigation and
Regulatory Cooperation) thereof, which provisions are incorporated herein by
reference and shall continue to bind you in accordance with their respective
terms.
5. Return of Property
All documents, records, material and all copies of any of the foregoing
pertaining to Confidential Information (as defined in Paragraph 4(a) of the
Employment Agreement), and all software, equipment, and other supplies, whether
or not pertaining to Confidential Information, that have come into your
possession or been produced by you in connection with your employment
("Property") have been and remain the sole property of the Companies. You shall
return all Property to the Companies on or before the Date of Termination. In no
event should this provision be construed to require you to return to the Company
any document or other materials concerning your remuneration and benefits during
your employment with the Companies.
6. Nondisparagement
You agree not to take any action or make any statement, written or oral,
which disparages or criticizes the Companies or their respective officers,
directors, agents, or management and business practices, or which disrupts or
impairs the Companies' normal operations. The Companies, on behalf of
themselves, agree (a) not to take any action or make any statement, written or
oral, which disparages or criticizes you or your management and business
practices, and (b) to instruct their respective directors and officers not to
take any action or make any statement, written or oral, which disparages or
criticizes you or your management and business practices. The provisions of this
Paragraph 6 shall not apply to any truthful statement required to be made by you
or the Companies, as the case may be, in any legal proceeding or governmental or
regulatory investigation.
7. Additional Representations, Warranties and Covenants. As a material
inducement to the Companies to enter into this Agreement, you represent, warrant
and covenant as follows:
(a) You have not assigned to any third party any Claim released by
this Agreement.
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(b) You have not heretofore filed with any agency or court any Claim
released by this Agreement.
8. Further Assurances
Upon the terms and subject to the conditions herein provided, each of the
parties hereto agrees to use its reasonable efforts to take, or cause to be
taken, all action and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement, subject, in the case
of the Companies, to the provisions of any credit agreement or financing
agreement or other contract or agreement by which any of the Companies may be
bound.
9. Exclusivity
This Agreement sets forth all the consideration to which you are entitled
from the Companies by reason of your termination and your duties for the
Companies while employed, and you agree that you shall not be entitled to or
eligible for any payments or benefits under any other Company severance, bonus,
retention or incentive policy, arrangement or plan.
10. Tax Matters
All payments and other consideration provided to you pursuant to this
Agreement shall be subject to any deductions, withholding or tax reporting that
the Companies reasonably determine to be required for tax purposes.
11. Arbitration of Disputes
Any controversy or claim arising out of or relating to this Agreement or
the breach thereof shall, to the fullest extent permitted by law, be settled by
arbitration in accordance with Paragraph 13 of the Employment Agreement. This
Paragraph 11 shall be specifically enforceable. Notwithstanding the foregoing,
this Paragraph 11 shall not preclude either party from pursuing a court action
for the sole purpose of obtaining a temporary restraining order or a preliminary
injunction in circumstances in which such relief is appropriate; provided that
any other relief shall be pursued through an arbitration proceeding pursuant to
this Paragraph 11.
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12. Consent to Jurisdiction
To the extent that any court action is permitted consistent with or to
enforce Paragraph 11 of this Agreement, the parties hereby consent to the
jurisdiction of the state and federal courts in or for Dallas, Texas.
Accordingly, with respect to any such court action, you and the Companies (a)
submit to the personal jurisdiction of such courts; (b) consent to service of
process; and (c) waive any other requirement (whether imposed by statute, rule
of court, or otherwise) with respect to personal jurisdiction or service of
process.
13. Notices, Acknowledgments and Other Terms
(a) You are advised to consult with an attorney before signing this
Agreement.
(b) You acknowledge and agree that the Companies' promises in this
Agreement constitute consideration in addition to anything of value to which you
are otherwise entitled by reason of the termination of your employment.
(c) By signing this Agreement, you acknowledge that you are doing so
voluntarily and knowingly, fully intending to be bound by this Agreement. You
also acknowledge that you are not relying on any representations by us or any
other representative of the Companies concerning the meaning of any aspect of
this Agreement. You understand that this Agreement shall not in any way be
construed as an admission by the Companies of any liability or any act of
wrongdoing whatsoever by the Companies against you and that the Companies
specifically disclaim any liability or wrongdoing whatsoever against you on the
part of themselves and their respective officers, directors, shareholders,
employees and agents. You understand that if you do not enter into this
Agreement and bring any claims against the Companies, the Companies will dispute
the merits of those claims and contend that they acted lawfully and for good
business reasons with respect to you.
(d) You acknowledge that you have been given the opportunity, if you
so desired, to consider this Agreement for twenty-one (21) days before executing
it. If not signed by you and returned to the General Counsel of WII so that it
is received by close of business on the twenty-second (22nd) day after your
receipt of the Agreement, this Agreement will not be valid. In addition, if you
breach any of the conditions of the Agreement within the twenty-one (21) day
period, the offer of this Agreement will be withdrawn and your execution of the
Agreement will not be valid. In the event that you execute and return this
Agreement within twenty-one (21) days or less of the date of its delivery to
you, you acknowledge that such decision was entirely voluntary and that you had
the opportunity to consider this letter agreement for the entire twenty-one (21)
day period. The Companies acknowledge that for a
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period of seven (7) days from the date of the execution of this Agreement, you
shall retain the right to revoke this Agreement by written notice delivered to
the General Counsel of WII before the end of such period, and that this
Agreement shall not become effective or enforceable until the expiration of such
revocation period (the " Effective Date").
(e) In the event of any dispute, this Agreement will be construed as
a whole, will be interpreted in accordance with its fair meaning, and will not
be construed strictly for or against either you or the Companies.
(f) The law of the State of Texas will govern any dispute about this
Agreement, including any interpretation or enforcement of this Agreement.
(g) In the event that any provision or portion of a provision of this
Agreement shall be determined to be illegal, invalid or unenforceable, the
remainder of this Agreement shall be enforced to the fullest extent possible and
the illegal, invalid or unenforceable provision or portion of a provision will
be amended by a court of competent jurisdiction to reflect the parties' intent
if possible. If such amendment is not possible, the illegal, invalid or
unenforceable provision or portion of a provision will be severed from the
remainder of this Agreement and the remainder of this Agreement shall be
enforced to the fullest extent possible as if such illegal, invalid or
unenforceable provision or portion of a provision was not included.
(h) This Agreement may be modified only by a written agreement signed
by you and authorized representatives of the Companies.
(i) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements between the parties with respect to any related subject matter,
except as provided in Paragraph 4 hereof and except for the Non Recourse
Promissory Note between the parties dated April 19, 1999 (as amended herein) and
except for the WII Non-Qualified Stock Option Agreement dated as of April 19,
1999 (as referenced in sub- paragraph 2 (a) above), which remains in effect in
accordance with its terms.
(j) This Agreement shall be binding upon each of the parties and upon
their respective heirs, administrators, representatives, executors, successors
and assigns, and shall inure to the benefit of each party and to their heirs,
administrators, representatives, executors, successors, and assigns.
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If you agree to these terms, please sign and date below and return this
Agreement to the General Counsel of WII within 22 days.
Sincerely,
WYNDHAM INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Xxxxx X. Xxxxxxxx
Chief Executive Officer
Accepted and agreed to:
/s/ Xxxxxxx X. Xxxxxx March 24, 2000
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Xxxxxxx X. Xxxxxx Date
