Exhibit 10.19
AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment, dated December 4, 2000, is entered into between Crestline
Hotels & Resorts, Inc. ("CHRI") and Xxxxx Xxxxxx ("Xx. Xxxxxx") for the purpose
of amending the Employment Agreement between them dated March 14, 2000 (the
"Agreement").
1. Section 6 of the Agreement is amended by adding the following language
as new Section 6(d), and renumbering existing Section 6(d) as Section 6(e):
(d) Gross-Up Payment in the Event of Termination Following Change in
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Control.
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(i) In the event that any Early Termination Payment, accelerated
vesting or other benefit payable to Xx. Xxxxxx shall (A)
constitute "parachute payments" within the meaning of Section
280G (as it may be amended or replaced) of the Internal Revenue
Code (the "Code") ("Parachute Payments") and (B) be subject to
the excise tax imposed by Section 4999 (as it may be amended or
replaced) of the Code ("the Excise Tax"), then CHRI shall pay to
Xx. Xxxxxx an additional amount (the "Gross-Up Amount") such that
the net benefits retained by Xx. Xxxxxx after the deduction of
the Excise Tax (including interest and penalties) and any
federal, state or local income taxes (including interest and
penalties) upon the Gross-Up Amount shall be equal to the
benefits that would have been delivered hereunder had the Excise
Tax not been applicable and the Gross-Up Amount not paid.
(ii) For purposes of determining the Gross-Up Amount: (A)
Parachute Payments provided under arrangements with Xx. Xxxxxx
other than the Stock Incentive Plan and this Agreement, if any,
shall be taken into
account in determining the total amount of Parachute Payments
received by Xx. Xxxxxx so that the amount of excess Parachute
Payments that are attributable to provisions of the Stock
Incentive Plan and this Agreement is maximized; and (B) Xx.
Xxxxxx shall be deemed to pay federal, state and local income
taxes at the highest marginal rate of taxation for Xx. Xxxxxx'x
taxable year in which the Parachute Payments are includable in
Xx. Xxxxxx'x income for purposes of federal, state and local
income taxation.
(iii) The determination of whether the Excise Tax is payable, the
amount thereof, and the amount of any Gross-Up Amount shall be
made in writing in good faith by a nationally recognized
independent certified public accounting firm approved by CHRI and
Xx. Xxxxxx, such approval not to be unreasonably withheld (the
"Accounting Firm"). If such determination is not finally accepted
by the Internal Revenue Service (or state or local revenue
authorities) on audit, then appropriate adjustments shall be
computed based upon the amount of Excise Tax and any interest or
penalties so determined; provided, however, that Xx. Xxxxxx in no
event shall owe CHRI any interest on any portion of the Gross-Up
Amount that is returned to CHRI. For purposes of making the
calculations required by this Section 6(d)(iii), to the extent
not otherwise specified herein, reasonable assumptions and
approximations may be made with respect to applicable taxes and
reasonable, good faith interpretations of the Code may be relied
upon. CHRI and Xx. Xxxxxx shall furnish such information and
documents as may be reasonably requested in connection with the
performance of the calculations under this Section 6(d)(iii).
CHRI shall bear all costs incurred in connection with the
performance of the calculations contemplated by this Section
6(d)(iii). CHRI shall pay the Gross-Up Amount to Xx. Xxxxxx no
later than sixty (60) days following receipt of the Accounting
Firm's determination of the Gross-Up Amount.
2. Section 8 of the Agreement is amended by adding the following language
as new Section 8(e):
(e) Notwithstanding any other provision of this Agreement, Xx.
Xxxxxx shall not be subject to the provisions of Section 8 (a)-
(d) of this Agreement if his employment is terminated by CHRI (or
its successor) or Xx. Xxxxxx following a Change in Control in
accordance with Section 6(c).
IN WITNESS WHEREOF, CHRI has caused this Amendment to be signed by its duly
authorized officer and Xx. Xxxxxx has executed this Amendment on the date and
year first written above.
XXXXX XXXXXX CRESTLINE HOTELS & RESORTS, INC.
________________________________ By: _______________________________________
Xxxxx X. Xxxxxx
Vice President, Chief Financial Officer
and Treasurer
