RELEASE AND WAIVER
Exhibit 10.1
THIS RELEASE AND WAIVER (the “Termination Release”) is made as of the _____ day of
___________, 2010, and shall be effective as of February 1, 2011, by and between ASHFORD
HOSPITALITY TRUST, INC. (the “REIT”) and XXXX XXXXXX (the “Executive”).
WHEREAS, the Executive, Ashford Hospitality Trust, Inc. (the “REIT”), and Ashford Hospitality
Limited Partnership (the “Operating Partnership”) have entered into an Employment Agreement (the
“Agreement”) dated effective as of March 31, 2008, and providing certain compensation and severance
amounts upon the Executive’s termination of employment; and
WHEREAS, the Executive has agreed, pursuant to the terms of the Agreement, to execute a
release and waiver in the form set forth in this Termination Release in consideration of the REIT
and the Operating Partnership (collectively, the “Company”) agreeing to provide the compensation
and severance amounts and agreeing to the other terms and conditions to become effective upon the
Executive’s termination of employment set out in this Termination Release, and in accordance with
the terms hereof and those other agreements referenced herein; and
WHEREAS, the Company and the Executive desire to settle all rights, duties and obligations
between them, including without limitation all such rights, duties, and obligations arising under
the Agreement or otherwise out of the Executive’s employment by the Company on the terms and
conditions set forth herein;
NOW THEREFORE, intending to be legally bound and for good and valid consideration the
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. RELEASE.
(a) The Executive knowingly and voluntarily releases, acquits, covenants not to xxx and
forever discharges the Company, and their respective affiliates, owners, parents, stockholders,
predecessors, successors, assigns, agents, directors, officers, employees, representatives,
divisions and subsidiaries (collectively, the “Releasees”) from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, damages, causes of action, suits, rights,
costs, losses, debts and expenses of any nature whatsoever, known or unknown, suspected or
unsuspected, foreseen or unforeseen, matured or unmatured, against them which the Executive or any
of his heirs, executors, administrators, successors and assigns ever had, now has or at any time
hereafter may have, own or hold by reason of any matter, fact, or cause whatsoever from the
beginning of time up to and including the date of this Termination Release, including without
limitation all claims arising under the Age Discrimination in Employment Act, Title VII of the
Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Family and Medical Leave
Act of 1993, the Employee Retirement Income Security
Act of 1974, Texas Labor Code Section 21.001, et seq. (Texas Employment Discrimination); Texas
Labor Code Section 61.001, et seq. (Texas Pay Day Act); Texas Labor Code Section 62.002, et seq.
(Texas Minimum Wage Act); Texas Labor Code Section 201.001, et seq. (Texas Unemployment
Compensation Act); Texas Labor Code Section 401.001, et seq., specifically Section 451.001 formerly
codified as Article 8307c of the Revised Civil Statutes (Texas Workers’ Compensation Act and
Discrimination Issues); and Texas Genetic Information and Testing Law, each as amended, or any
other federal, state or local laws, rules, regulations, judicial decisions or public policies now
or hereafter recognized, SPECIFICALLY EXCLUDING from the scope of the release contained in this
Termination Release, those matters, considerations and future obligations of the Company set forth
in Section 8(c) and otherwise as set forth in the Agreement
(b) The Executive represents that he has not filed or permitted to be filed against any of the
Releasees, any complaints, charges or lawsuits and covenants and agrees that he will not seek or be
entitled to any personal recovery in any court or before any governmental agency, arbitrator or
self-regulatory body against any of the Releasees arising out of any matters set forth in Section
1(a) hereof. Notwithstanding anything in this Termination Release to the contrary, nothing herein
shall prevent the Executive from seeking to enforce his rights under this Termination Release or
the Agreement. Further, the Executive does not, by virtue of his execution of this Termination
Release, hereby waive or release his rights to any benefits under the respective Company employee
benefit plans to which he is or will be entitled pursuant to the terms of such plans in the
ordinary course.
(c) The Executive acknowledges that on or about each of March 21, 2008, April 2, 2009, August
15, 2008 and March 24, 2010, the Executive was issued a number of unvested restricted stock grants
pursuant to the 2003 stock incentive plan of the REIT (the “Stock Grants”), which Stock Grants are
represented and governed by separate written agreements entitled “Grant of Restricted Stock” (the
“Stock Grant Agreements”). Pursuant to the Stock Grant Agreements, (a) 33.33% of the Stock Grants
vest on each anniversary date of the issuance of such Stock Grants over a period of three years,
and (b) upon any resignation or removal from employment with the REIT or its affiliates, all
unvested Stock Grants are forfeited by the Executive (the “Forfeiture Clause”). Notwithstanding
the Forfeiture Clause to the contrary, the REIT agrees to permit the Executive to retain all
unvested Stock Grants held as of the date hereof, which Stock Grants will vest proportionately in
the same timeframe as provided in each respective Stock Grant Agreement, all as more specifically
set forth on Schedule 1 attached hereto; provided, however, it shall be a condition to the
vesting of any Stock Grants that the Executive shall not have breached any of the terms and
conditions of this Termination Release. In the event of a material, uncured (after due notice and
a reasonable opportunity to cure provided to Executive) breach by the Executive of any of the
material terms and conditions of this Termination Release, all unvested Stock Grants shall be
forfeited by the Executive, and the Company and Executive will each retain all rights, remedies and
defenses available at law or in equity, except where specifically waived or released hereunder.
(d) At all times prior to the date that 100% of the Stock Grants become fully vested (i.e.,
March 24, 2013), the Executive will remain unemployed, except (i) for the permitted activities
described in Section 1(c)(i), (ii) and (iii) of the Agreement, (ii) consulting work with the
Company and its affiliates as reasonably required by the Company from time to time, not in excess
of 15 / hours per week on average during any particular month, and (iii) following the first
anniversary of the date of this Termination Release, consulting work with any other company or
organization not in excess of fifteen (15) hours per week on average during any particular month.
Following the first anniversary of the date of this Termination Release through March 24, 2013, the
Company shall pay the Executive for any such consulting work with the Company and its affiliates at
a rate of $400 per hour.
(e) The parties agree that the Executive’s termination of employment is the result of the
voluntary resignation of the Executive, which is characterized under the Agreement as a
“Termination by Executive Without Good Reason”. The Date of Termination is February 1, 2011.
2. NON-DISPARAGEMENT. The Executive covenants and agrees he will not make statements or
representations, or otherwise communicate, directly or indirectly, in writing, orally, or
otherwise, or take any action which may, directly or indirectly, disparage the Company or their
respective affiliates or their respective officers, directors, employees, advisors, businesses or
reputations. Notwithstanding the foregoing, nothing herein or in the Agreement shall preclude the
Executive from making truthful statements or disclosures that are required by applicable law,
regulation, or legal process.
3. NON-SOLICITATION. The Executive covenants and agrees he shall not, without the prior
written consent of the Company, for a period ending three (3) years from the Date of Termination
(as defined in the Agreement), directly or indirectly, whether for his own account or on behalf of
any person, firm, corporation, partnership, association or other entity or enterprise, solicit,
recruit, hire or cause to be hired any employees of the Company or any of their affiliates, or any
person who was an employee of the Company during the six months preceding the Executive’s Date of
Termination (as defined in the Agreement), or solicit or encourage any employee of the Company or
any of their affiliates to leave the employment of the Company or any of such affiliates, as
applicable.
4. NON-INTERFERENCE WITH COMPANY OPPORTUNITIES. The Executive understands and agrees that all
business opportunities with which he is involved during his employment with the Company constitute
valuable assets of the Company and their affiliated entities, and may not be converted to
Executive’s own use or converted by Executive for the use of any person, firm, corporation,
partnership, association or other entity or enterprise. Accordingly, Executive agrees he shall
not, directly or indirectly, whether for his own account or on behalf of any person, firm,
corporation, partnership, association or other entity or enterprise, interfere with, solicit,
pursue, or in any manner make use of any such business opportunities.
5. ACKNOWLEDGMENT. The Company have advised the Executive to consult with an attorney of his
choosing prior to signing this Termination Release and the Executive hereby represents to the
Company that he has been offered an opportunity to consult with an attorney prior to signing this
Termination Release.
BECAUSE THE EXECUTIVE IS OVER FORTY (40) YEARS OF AGE, HE HAS SPECIFIC RIGHTS UNDER THE OLDER
WORKERS BENEFITS PROTECTION ACT (“OWBPA”), WHICH PROHIBITS DISCRIMINATION ON THE BASIS OF AGE, AND
THAT THE RELEASES SET FORTH IN THIS TERMINATION RELEASE ARE INTENDED TO RELEASE ANY RIGHT HE MAY
HAVE TO FILE A CLAIM AGAINST THE COMPANY ALLEGING DISCRIMINATION ON THE BASIS OF AGE.
THE EXECUTIVE’S SIGNATURE BELOW CERTIFIES THAT THE COMPANY HAS PROVIDED HIM WITH TWENTY-ONE
DAYS (UNTIL DECEMBER ____, 2010) IN WHICH TO CONSIDER AND ACCEPT THE TERMS OF THIS TERMINATION
RELEASE BY SIGNING BELOW AND RETURNING IT TO XXXXX XXXXXX, C/X XXXXXXX HOSPITALTIY TRUST.
EXECUTIVE HAS THE RIGHT TO WAIVE THE TWENTY-ONE (21) DAY PERIOD BY EXECUTING THE TERMINATION
RELEASE AND DELIVERING THE EXECUTED ORIGINAL TERMINATION RELEASE TO THE COMPANY. THE COMPANY
HEREBY ADVISES EXECUTIVE THAT GRANTING SUCH WAIVERS IS VOLUNTARY AND THAT ACCEPTANCE OF THIS
TERMINATION RELEASE IS VOLUNTARY. IN ADDITION, EXECUTIVE MAY RESCIND HIS ASSENT TO THIS
TERMINATION RELEASE IF, WITHIN SEVEN (7) DAYS AFTER HE SIGNS IT, HE DELIVERS A NOTICE OF RESCISSION
TO THE COMPANY. TO BE EFFECTIVE, SUCH RESCISSION MUST BE HAND DELIVERED OR POSTMARKED WITHIN THE
SEVEN (7) DAY PERIOD AND SENT BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO XXXXX XXXXXX, CHIEF
OPERATING OFFICER AND GENERAL COUNSEL, ASHFORD HOSPITALITY TRUST, 00000 XXXXXX XXXXXXX, XXXXXX, XX,
00000. IF THE TERMINATION RELEASE IS NOT REVOKED OR RESCINDED WITHIN THE SEVEN (7) DAY PERIOD, THE
TERMINATION RELEASE SHALL BECOME BINDING ON THE PARTIES HERETO. HOWEVER, IF THE TERMINATION
RELEASE IS TIMELY REVOKED OR RESCINDED, THIS OFFER OF SETTLEMENT SHALL TERMINATE AND THE
TERMINATION RELEASE SHALL BE NULL AND VOID.
IN WITNESS WHEREOF, the Executive and the Company have executed this Termination Release under
seal as of the day and year first above written.
| Xxxx Xxxxxx | ||||||||
| Ashford Hospitality Trust, Inc. | ||||||||
| By: | ||||||||
| Xxxxx Xxxxxx | ||||||||
| Chief Operating Officer | ||||||||
| Ashford Hospitality Limited Partnership | ||||||||
| By: | Ashford OP General Partner LLC | |||||||
| By: | ||||||||
| Vice President | ||||||||
Schedule 1
Unvested Stock Grants and Vesting Schedule
| Stock Grant Issue | Total Unvested | Number of Shares to | ||||||||
| Date | Shares Outstanding | Vesting Date | Vest | |||||||
March 21, 2008 |
0 | N/A | 0 | |||||||
August 15, 2008 |
3,334 | August 15, 2011 | 3,334 | |||||||
April 2, 2009 |
64,867 | April 2, 2011 | 32,433 | |||||||
| April 2, 2012 | 32,434 | |||||||||
March 24, 2010 |
185,000 | March 24, 2011 | 61,666 | |||||||
| March 24, 2012 | 61,667 | |||||||||
| March 24, 2013 | 61,667 | |||||||||
Total Unvested Shares Outstanding = 253,201 shares
