EXHIBIT 10.1
April 14, 2000
Xx. Xxxx Xxxxxxx
c/o Wyndham International, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Dear Xx. Xxxxxxx:
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").
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
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You hereby acknowledge that your employment with WII will terminate
effective as of July 1, 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 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"). WII will continue your salary
and benefits through the Date of Termination pursuant to Paragraph 7(d) of the
Employment Agreement, and shall on the date of termination pay you a pro rata
bonus of Ninety Thousand, Seven Hundred and Twenty-Five Dollars ($90,725) in
respect of 2000.
2. Compensation and Benefits.
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(a) Effect of Termination on Equity Grants. You understand and
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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
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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 Nine
Hundred Eighty Three Thousand Eight Hundred Dollars ($983,800) (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 in equal bi-weekly installments over a
period of twenty-four (24) months commencing on the regular payroll date
next following the Date of Termination (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 during the Severance Period from the new employment. You
shall provide the Companies notice of any new employment and cash
compensation received during the Severance Period after the Date of
Termination.
(c) Health/Dental/Vision Benefits. You and your eligible dependents
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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 and 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) the date 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) eighteen (18) months after the Termination Date or (B) the
date you become eligible for similar coverage provided by another
employer.
(d) Tax Preparation. The Companies shall provide reasonable assistance
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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
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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) Promissory Note. Section 3 of that certain No Personal Liability
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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 herein below, WII agrees that the
principal balance and accrued interest on the Note shall not become due
and payable until June 1, 2002. In the event you breach any of your
continuing obligations under Paragraphs 4 or 5 of the Employment
Agreement, as incorporated and modified herein below, 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 herein below, through
June 1, 2002, the principal balance and accrued interest on the Note shall
not become due and payable until June 1, 2004.
(g) Gross Up Payment. You remain eligible for a Gross Up Payment, if
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necessary, as provided for in Paragraph 8(b) of the Employment Agreement.
(h) Other Benefits. Except as expressly provided above, your
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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.
(i) Employee Rates. You and your family will be entitled to stay in
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any Company hotels at employee rates, subject to availability, throughout
the Severance Period.
3. Release of Claims. So long as the Companies recognize and honor the
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agreements herein made, 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 "Releases") 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 Releases 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. This paragraph 3 does not
release any claim for non-performance or breach of this Agreement.
You agree that you will not hereafter pursue any Claim against any Release
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 Releases.
4. Employment Agreement
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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
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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 (except your IBM Think pad 240 notebook computer which can
be retained by you) 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
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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
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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.
(b) You have not heretofore filed with any agency or court any Claim
released by this Agreement.
8. Further Assurances
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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
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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
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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
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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
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any other relief shall be pursued through an arbitration proceeding pursuant to
this Paragraph 11.
12. Consent to Jurisdiction
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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
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(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 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 which remains in
effect in accordance with its terms, as amended by this agreement.
(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.
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/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
Chief Executive Officer & President
Accepted and agreed to:
/s/ Xxxx X. Xxxxxxx April 15, 2000
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Xxxx Xxxxxxx Date
