Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of the ____
day of _______, 2001, between Wyndham International, Inc., a Delaware
corporation (the "Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("Executive"), effective as of
March 19, 2001 (the "Effective Date").
WHEREAS, the Company desires to employ Executive and Executive desires
to be employed by the Company;
WHEREAS, as an additional inducement to Executive to enter into this
Agreement, the Company shall, on the Effective Date, (a) grant Executive an
option to purchase a certain number of shares of Class A common stock of the
Company as set forth in the agreement attached hereto as Exhibit A (the
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"Option"), (b) grant Executive a certain number of shares of Class A common
stock of the Company as set forth in the agreement attached hereto as Exhibit B
(the "Stock Grant"), (c) enter into a promissory note in the form attached
hereto as Exhibit C (the "Non-Recourse Note"), and (d) enter into a promissory
note in the form attached hereto as Exhibit D (the "Recourse Note"); and
WHEREAS, Executive is desirous of committing to serve the Company on the
terms herein provided.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree that as of the
Effective Date they shall enter into this Agreement which provides as follows:
1. Employment. The term of this Agreement shall extend from the Effective
Date until the third anniversary of the Effective Date; provided, however, that
the term of this Agreement shall automatically be extended for one additional
year on the third anniversary of the Effective Date and each anniversary
thereafter unless, not less than ninety (90) days prior to each such date,
either party shall have given notice to the other that it does not wish to
extend this Agreement; provided, further, that if a Change in Control occurs
during the original or extended term of this Agreement, the term of this
Agreement shall continue in effect until the later of the end of the initial
term described above or the end of the eighteenth (18/th/) month following the
month in which the Change in Control occurred. The term of this Agreement shall
be subject to termination as provided in Paragraph 6 and may be referred to
herein as the "Period of Employment."
2. Position and Duties. During the Period of Employment, Executive shall
serve as Chief Investment Officer and Executive Vice President of the Company,
shall have supervision and control over and responsibility for the day-to-day
business and affairs of those functions and operations of the Company and shall
have such other powers and duties as may from time to time be prescribed by the
Chairman of the Board of the Company (the "Chairman") or the Chief
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Executive Officer of the Company (the "CEO"), provided that such duties are
consistent with Executive's position or other positions that he may hold from
time to time. Executive shall devote his full working time and efforts to the
business and affairs of the Company. Notwithstanding the foregoing, Executive
may serve on other boards of directors, with the approval of the Chairman or
CEO, or engage in religious, charitable or other community activities as long as
such services and activities are disclosed to the Chairman or CEO and do not
materially interfere with Executive's performance of his duties to the Company
as provided in this Agreement.
3. Compensation and Related Matters.
(a) Base Salary. Executive's initial annual base salary ("Base
Salary") shall be $350,000. Executive's salary for the year 2001 shall be
prorated for the portion of the year Executive is employed with the Company.
Thereafter, Executive's Base Salary shall be redetermined at least thirty (30)
days before each annual compensation determination date (the "Annual
Compensation Determination Date") established by the Company during the Period
of Employment in an amount to be fixed by the Board of Directors of the Company
or a committee thereof or a duly authorized officer (the "Board"). The Base
Salary, as redetermined, may be referred to herein as "Adjusted Base Salary."
The Base Salary, or Adjusted Base Salary, if applicable, shall be payable in
substantially equal bi-weekly installments and shall in no way limit or reduce
the obligations of the Company hereunder.
(b) Incentive Compensation. In addition to Base Salary or, if
applicable, Adjusted Base Salary, Executive shall be eligible to receive in each
fiscal year during the Period of Employment, on or about the Annual Compensation
Determination Date, cash incentive compensation (the "Incentive Compensation")
in an amount determined annually by the Board based on individual performance,
"Employer EBITDA Achievement" (as hereinafter defined), and total return to
shareholders. Incentive Compensation shall equal from zero to 1 1/2 times the
then current Base Salary or, if applicable, Adjusted Base Salary. "Employer
EBITDA Achievement" is the degree to which the annual budget established by
Employer for earnings before interest, taxes, depreciation, and amortization is
achieved. Incentive Compensation shall be fixed and guaranteed at 100% of Base
Salary paid for the period commencing on the Effective Date and ending December
31, 2001. Thereafter, Incentive Compensation shall be targeted at a minimum of
100% of the Base Salary or, if applicable, Adjusted Base Salary for any year in
which Employer EBITDA Achievement is one hundred percent (100%) or more ("Target
Incentive Compensation"). The maximum Incentive Compensation payable to
Executive for any fiscal year shall be equal to one hundred fifty percent (150%)
of the Base Salary, or if applicable, Adjusted Base Salary.
"Pro Rata Incentive Compensation" shall be paid to Executive if
Executive's employment is terminated by reason of Executive's death or
disability, as provided in Subparagraphs 6(a) and 6(b), if Executive's
employment is terminated by the Executive for Good Reason, as provided in
Subparagraph 6(e), or if Executive's employment is terminated by the Company
without Cause, as provided in Subparagraph 6(d). Pro Rata Incentive Compensation
equals the Incentive Compensation for the fiscal year of termination multiplied
by a fraction, the numerator of which
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is the number of days in the current fiscal year through Date of Termination and
the denominator of which is 365.
If, for the purpose of calculating Incentive Compensation or Pro Rata
Incentive Compensation, the Incentive Compensation cannot be determined by the
time required to be paid, the Company shall make a good faith estimate of the
pro rata amount based on an amount Executive would have earned had he continued
employment for the entire fiscal year; provided, however, that where the Date of
Termination occurs during the first six months of any fiscal year, the Pro Rata
Incentive Compensation paid to Executive if Executive's employment is terminated
by reason of Executive's death or disability, by the Executive for Good Reason,
or by the Company without Cause shall not exceed fifty percent (50%) of the
maximum Incentive Compensation which could have been paid to Executive in the
fiscal year immediately preceding the fiscal year of termination.
Executive shall also be eligible to participate in such other incentive
compensation plans, policies or practices as the Board shall determine.
(c) Expenses. Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by him (in accordance with
the policies and procedures then in effect and established by the Company for
its senior executive officers) in performing services hereunder during the
Period of Employment, provided that Executive properly accounts therefor in
accordance with Company policy.
(d) Other Benefits. During the Period of Employment, Executive shall
be entitled to continue to participate in or receive benefits under all of the
Company's Employee Benefit Plans in effect on the date hereof, or under plans or
arrangements that provide Executive with at least substantially equivalent
benefits to those provided under such Employee Benefit Plans. As used herein,
"Employee Benefit Plans" include, without limitation, each pension and
retirement plan; supplemental pension, retirement and deferred compensation
plan; savings and profit-sharing plan; stock ownership plan; stock purchase
plan; stock option plan; life insurance plan; medical insurance plan; disability
plan; and health and accident plan or arrangement established and maintained by
the Company on the date hereof for employees of the same status within the
hierarchy of the Company. To the extent that the scope or nature of benefits
described in this section are determined under the policies of the Company based
in whole or in part on the seniority or tenure of an employee's service,
Executive shall be deemed to have a tenure with the Company equal to the actual
time of Executive's service with Company. During the Period of Employment,
Executive shall be entitled to participate in or receive benefits under any
employee benefit plan or arrangement which may, in the future, be made available
by the Company to its executives and key management employees, subject to and on
a basis consistent with the terms, conditions and overall administration of such
plan or arrangement. Any payments or benefits payable to Executive under a plan
or arrangement referred to in this Subparagraph 3(c) in respect of any calendar
year during which Executive is employed by the Company for less than the whole
of such year shall, unless otherwise provided in the applicable plan or
arrangement, be prorated in accordance with the number of days in such calendar
year during which he is so employed.
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Should any such payments or benefits accrue on a fiscal (rather than calendar)
year, then the proration in the preceding sentence shall be on the basis of a
fiscal year rather than calendar year.
(e) Life Insurance. The Company shall pay the premiums on, and
maintain in effect throughout the Period of Employment, a life insurance policy
on the life of Executive in an amount not less than the amount of Executive's
then current Base Salary or Adjusted Base Salary. Executive shall have the right
to designate the beneficiary under such policy.
(f) Vacations. Executive shall be entitled to the number of paid
vacation days in each calendar year determined by the Company from time to time
for executives at the same level as Executive; provided, however, that Executive
shall be entitled to ten (10) paid vacation days during 2001. Executive shall
also be entitled to all paid holidays given by the Company to its executives. To
the extent that the scope or nature of benefits described in this section are
determined under the policies of the Company based in whole or in part on the
seniority or tenure of an employee's service, Executive shall be deemed to have
a tenure with the Company equal to the actual time of Executive's service with
Company.
(g) Disability Insurance. The Company shall pay the premiums on, and
maintain in effect through the Period of Employment, long-term disability
insurance providing for payment of benefits at rates not less than sixty percent
(60%) of Executive's current Base Salary or Adjusted Base Salary.
(h) Forgiveness of Recourse Note. On each anniversary of the
Effective Date during the five-year period following the Effective Date, the
Company shall forgive one-fifth of the original principal amount of the Recourse
Note; provided, however, that the Company shall not be obligated to so forgive a
portion of the Recourse Note on any such anniversary if prior to such day
Executive's employment shall have been terminated by the Company for Cause
pursuant to Subparagraph 6(c) or by Executive for any reason other than Good
Reason pursuant to Subparagraph 6(e). If Executive's employment shall have been
terminated for any reasons other than the ones described in the preceding
sentence, then the remaining balance of the original principal amount of the
Recourse Note shall be forgiven as of the Date of Termination. In addition, upon
a Change in Control of the Company (as defined in Subparagraph 8(c)), the then
remaining balance of the original principal amount of the Recourse Note shall be
forgiven. The Company shall provide such documentation evidencing such
forgiveness as Executive may reasonably request.
4. Unauthorized Disclosure.
(a) Confidential Information. Executive acknowledges that in the
course of his employment with the Company (and, if applicable, its
predecessors), he has been allowed to become, and will continue to be allowed to
become, acquainted with the Company's business affairs, information, trade
secrets, and other matters which are of a proprietary or confidential nature,
including but not limited to the Company's and its predecessors' operations,
business opportunities, price and cost information, finance, customer
information, business plans, various
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sales techniques, manuals, letters, notebooks, procedures, reports, products,
processes, services, and other confidential information and knowledge
(collectively the "Confidential Information") concerning the Company's and its
predecessors' business. The Company agrees to provide on an ongoing basis such
Confidential Information as the Company deems necessary or desirable to aid
Executive in the performance of his duties. Executive understands and
acknowledges that such Confidential Information is confidential, and he agrees
not to disclose such Confidential Information to anyone outside the Company
except to the extent that (i) Executive deems such disclosure or use reasonably
necessary or appropriate in connection with performing his duties on behalf of
the Company, (ii) Executive is required by order of a court of competent
jurisdiction (by subpoena or similar process) to disclose or discuss any
Confidential Information, provided that in such case, Executive shall promptly
inform the Company of such event, shall cooperate with the Company in attempting
to obtain a protective order or to otherwise restrict such disclosure, and shall
only disclose Confidential Information to the minimum extent necessary to comply
with any such court order; (iii) such Confidential Information becomes generally
known to and available for use by the hotel and hospitality industry (the "Hotel
Industry"), other than as a result of any action or inaction by Executive; or
(iv) such information has been rightfully received by a member of the Hotel
Industry or has been published in a form generally available to the Hotel
Industry prior to the date Executive proposes to disclose or use such
information. Executive further agrees that he will not during employment and/or
at any time thereafter use such Confidential Information in competing, directly
or indirectly, with the Company. At such time as Executive shall cease to be
employed by the Company, he will immediately turn over to the Company all
Confidential Information, including papers, documents, writings, electronically
stored information, other property, and all copies of them provided to or
created by him during the course of his employment with the Company.
(b) Heirs, successors, and legal representatives. The foregoing
provisions of this Paragraph 4 shall be binding upon Executive's heirs,
successors, and legal representatives. The provisions of this Paragraph 4 shall
survive the termination of this Agreement for any reason.
5. Covenant Not to Compete. In consideration for the Option, the Stock
Grant, the loans evidenced by the Recourse Note and the Non-Recourse Note, the
Company's promise to provide Confidential Information as set forth in Paragraph
4 above, and for Executive's employment by the Company under the terms provided
in this Agreement, and as a means to aid in the performance and enforcement of
the terms of and preserve the rights of the Company pursuant to the Unauthorized
Disclosure provisions of Paragraph 4, Executive agrees as follows:
(a) during the term of Executive's employment with the Company and
for a period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment, (except that the restrictions of this Paragraph 5(a)
relating to the twenty-four (24) months after the term of employment shall not
apply if (x) Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e) or (y) Executive's employment is terminated by the Company
without Cause as provided in Subparagraph 6(d) within eighteen (18) months after
the occurrence of a Change in Control), Executive will not, directly or
indirectly, as an owner, director, principal, agent, officer, employee, partner,
consultant, servant, or otherwise, carry on, operate,
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manage, control, or become involved in any manner with any business, operation,
corporation, partnership, association, agency, or other person or entity which
is in the business of owning, operating, managing or granting franchise rights
with respect to hotels, motels or other lodging facilities in any area or
territory in which the Company conducts operations; provided, however, that the
foregoing shall not prohibit Executive from owning up to one percent (1%) of the
outstanding stock of a publicly held company engaged in the hospitality
business. Notwithstanding the foregoing, after Executive's employment with the
Company has terminated, upon receiving written permission by the Board,
Executive shall be permitted to engage in such activities with respect to any
other hotel, motel or lodging facility that would be immaterial to the
operations of the Company in the area or territory in question. Immateriality,
for purposes of the foregoing sentence, shall be determined in the sole
discretion of the Board in good faith.
(b) during the term of Executive's employment with the Company and
for a period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment (except that the restrictions of this Paragraph 5(b)
relating to the twenty-four (24) months after the term of employment shall not
apply if (x) Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e) or (y) Executive's employment is terminated by the Company
without Cause as provided in Subparagraph 6(d) within eighteen (18) months after
the occurrence of a Change in Control), Executive will not, directly or
indirectly, either for himself or for any other business, operation,
corporation, partnership, association, agency, or other person or entity, call
upon, compete for, solicit, divert, or take away, or attempt to divert or take
away any of the customers (including, without limitation, any hotel owner,
lessor or lessee, asset manager, trustee, consumer with whom the Company from
time to time (i) has an existing agreement or business relationship; (ii) has
had an agreement or business relationship within the two-year period preceding
the Executive's last day of employment with the Company; or (iii) has included
as a prospect in its applicable pipeline) or vendors of the Company in any of
the areas or territories in which the Company conducts operations if such action
has the intent or effect of interfering with the Company's relationship with the
vendor or customer.
(c) during the term of Executive's employment with the Company and
for a period of twenty-four (24) months thereafter, regardless of the reason for
termination of employment (except that the restrictions of this Paragraph 5(c)
relating to the twenty-four (24) months after the term of employment shall not
apply if (x) Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e) or (y) Executive's employment is terminated by the Company
without Cause as provided in Subparagraph 6(d) within eighteen (18) months after
the occurrence of a Change in Control), Executive will not directly or
indirectly solicit or induce any current or prospective employee of the Company
(including, without limitation, any current or prospective employee of the
Company within the six-month period preceding Executive's last day of employment
with the Company or within the 24-month period of this covenant) to accept
employment with Executive or with any business, operation, corporation,
partnership, association, agency, or other person or entity with which Executive
may be associated, and Executive will not employ or cause any business,
operation, corporation, partnership, association, agency, or other person or
entity with which Executive may be associated to employ any current or
prospective
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employee of the Company without providing the Company with ten (10) days' prior
written notice of such proposed employment.
(d) Executive agrees and acknowledges that the restrictions contained
in this noncompetition covenant are reasonable in scope and duration and are
necessary to protect the Company's business interests and Confidential
Information after the Effective Date of this Agreement. If any provision of this
noncompetition covenant as applied to any party or to any circumstance is
adjudged by a court to be invalid or unenforceable, the same will in no way
affect any other circumstance or the validity or enforceability of this
Agreement. If any such provision, or any part thereof, is held to be
unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination shall have
the power to reduce the duration and/or area of such provision, and/or to delete
specific words or phrases, and in its reduced form, such provision shall then be
enforceable and shall be enforced. The parties agree and acknowledge that the
breach of this noncompetition covenant will cause irreparable damage to the
Company, and upon breach of any provision of this noncompetition covenant, the
Company shall be entitled to injunctive relief, specific performance, or other
equitable relief; provided, however, that this shall in no way limit any other
remedies which the Company may have (including, without limitation, the right to
seek monetary damages).
(e) Should Executive violate the provisions of this Paragraph, then
in addition to all other rights and remedies available to the Company at law or
in equity, the duration of this covenant shall automatically be extended for the
period of time from which Executive began such violation until he permanently
ceases such violation.
6. Termination. Executive's employment hereunder may be terminated without
any breach of this Agreement under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon his
death.
(b) Disability. If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall have been absent from his duties
hereunder on a full-time basis for one hundred eighty (180) calendar days in the
aggregate in any twelve (12) month period, the Company may terminate Executive's
employment hereunder.
(c) Termination by Company For Cause. At any time during the Period
of Employment, the Company may terminate Executive's employment hereunder for
Cause if such termination is approved by not less than a majority of the Board
of Directors at a meeting of such Board of Directors called and held for such
purpose. Any determination by the Board of Directors that "Cause" exists shall
be made by the Board of Directors in good faith. For purposes of this Agreement
"Cause" shall mean: (A) conduct by Executive constituting a material act of
willful misconduct in connection with the performance of his duties, including,
without limitation, misappropriation of funds or property of the Company or any
of its affiliates other than the occasional, customary and de minimis use of
Company property for personal purposes; (B) criminal or civil conviction of
Executive, a plea of nolo contendere by Executive or conduct
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by Executive that would reasonably be expected to result in material injury to
the reputation of the Company if he were retained in his position with the
Company, including, without limitation, conviction of a felony involving moral
turpitude; (C) continued, willful and deliberate non-performance by Executive of
his duties hereunder (other than by reason of Executive's physical or mental
illness, incapacity or disability) and such non-performance has continued for
more than thirty (30) days following written notice of such non-performance from
the Board; (D) a breach by Executive of any of the provisions contained in
Paragraphs 4 and 5 of this Agreement; or (E) a violation by Executive of the
Company's employment policies and such violation has continued for more than
thirty (30) days following written notice of such violation from the Board.
(d) Termination Without Cause. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder without
Cause if such termination is approved by a majority of the Board of Directors at
a meeting of the Board of Directors called and held for such purpose. Any
termination by the Company of Executive's employment under this Agreement which
does not constitute a termination for Cause under Subparagraph 6(c) or result
from the death or disability of the Executive under Subparagraph 6(a) or (b)
shall be deemed a termination without Cause. If the Company provides notice to
the Executive under Paragraph 1 that it does not wish to extend the Period of
Employment, such action shall be deemed a termination without Cause.
(e) Termination by Executive. At any time during the Period of
Employment, Executive may terminate his employment hereunder for any reason,
including but not limited to Good Reason. If Executive provides notice to the
Company under Paragraph 1 that he does not wish to extend the Period of
Employment, such action shall be deemed a voluntary termination by Executive and
one without Good Reason. For purposes of this Agreement, "Good Reason" shall
mean that Executive has complied with the "Good Reason Process" (hereinafter
defined) following the occurrence of any of the following events: (A) a
substantial diminution or other substantive adverse change, not consented to by
Executive, in the nature or scope of Executive's responsibilities, authorities,
powers, functions or duties, other than a change in Executive's position or
reporting relationship; (B) any removal, during the Period of Employment, from
Executive of his title of Executive Vice President; (C) an involuntary reduction
in Executive's Base Salary or Adjusted Base Salary or involuntary reduction in
cash incentive compensation plan (but not reduction in incentive compensation
appropriate for level of performance) except for across-the-board salary
reductions similarly affecting all or substantially all management employees;
(D) a breach by the Company of any of its other material obligations under this
Agreement and the failure of the Company to cure such breach within thirty (30)
days after written notice thereof by Executive; (E) the involuntary relocation
of the Company's offices at which Executive is principally employed or the
involuntary relocation of the offices of Executive's primary workgroup to a
location more than thirty (30) miles from such offices (other than a relocation
in either event to Dallas, Texas), or the requirement by the Company for
Executive to be based anywhere other than the Company's offices at such location
or in Dallas, Texas on an extended basis, except for required travel on the
Company's business to an extent substantially consistent with Executive's
business travel obligations; (F) the requirement that Executive report to a
person who is below the level of CEO; or (G) the occurrence of the first event
during the
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Period of Employment constituting a Change in Control provided Executive gives
notice to the Company of termination of employment within 18 months after the
occurrence of such Change in Control. "Good Reason Process" shall mean that (i)
the Executive reasonably determines in good faith that a "Good Reason" event has
occurred; (ii) Executive notifies the Company in writing of the occurrence of
the Good Reason event; (iii) other than termination pursuant to clause (G) of
the immediately preceding sentence, Executive cooperates in good faith with the
Company's efforts, for a period not less than ninety (90) days following such
notice, to modify Executive's employment situation in a manner acceptable to
Executive and Company; and (iv) notwithstanding such efforts, one or more of the
Good Reason events continues to exist and has not been modified in a manner
acceptable to Executive. If the Company cures the Good Reason event during the
ninety (90) day period, Good Reason shall be deemed not to have occurred.
(f) Notice of Termination. Except for termination as specified in
Subparagraph 6(a), any termination of Executive's employment by the Company or
any such termination by Executive shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon.
(g) Date of Termination. "Date of Termination" shall mean: (A) if
Executive's employment is terminated by his death, the date of his death; (B) if
Executive's employment is terminated on account of disability under Subparagraph
6(b) or by the Company for Cause under Subparagraph 6(c), the date on which
Notice of Termination is given; (C) if Executive's employment is terminated by
the Company under Subparagraph 6(d), sixty (60) days after the date on which a
Notice of Termination is given; and (D) if Executive's employment is terminated
by Executive under Subparagraph 6(e), thirty (30) days after the date on which a
Notice of Termination is given.
7. Compensation Upon Termination or During Disability.
(a) If Executive's employment terminates by reason of his death, the
Company shall, within ninety (90) days of death, pay in a lump sum amount to
such person as Executive shall designate in a notice filed with the Company or,
if no such person is designated, to Executive's estate, Executive's accrued and
unpaid Base Salary or, if applicable, his Adjusted Base Salary, to the date of
his death, plus accrued and unpaid Incentive Compensation, if any, for the
fiscal year preceding termination and Pro Rata Incentive Compensation, if any,
under Subparagraph 3(b). For a period of one (1) year following the Date of
Termination, the Company shall pay such health insurance premiums as may be
necessary to allow Executive's spouse and dependents to receive health insurance
coverage substantially similar to coverage they received prior to the Date of
Termination. In addition to the foregoing, any payments to which Executive's
spouse, beneficiaries, or estate may be entitled under any employee benefit plan
shall also be paid in accordance with the terms of such plan or arrangement.
Such payments, in the aggregate, shall fully discharge the Company's obligations
hereunder.
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(b) During any period that Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, Executive
shall continue to receive his accrued and unpaid Base Salary or, if applicable,
his Adjusted Base Salary and Incentive Compensation payments, if any, under
Subparagraph 3(a), until Executive's employment is terminated due to disability
in accordance with Subparagraph 6(b) or until Executive terminates his
employment in accordance with Subparagraph 6(e), whichever first occurs, at
which point Executive shall then receive accrued and unpaid base salary and
accrued and unpaid Incentive Compensation, if any, for the fiscal year preceding
termination and Pro Rata Incentive Compensation, if any, under Subparagraph
3(b). For a period of one (1) year following the Date of Termination, the
Company shall pay such health insurance premiums as may be necessary to allow
Executive, Executive's spouse and dependents to receive health insurance
coverage substantially similar to coverage they received prior to the Date of
Termination. Upon termination due to death prior to the termination first to
occur as specified in the preceding sentence, Subparagraph 7(a) shall apply.
(c) If Executive's employment is terminated by Executive other than
for Good Reason as provided in Subparagraph 6(e), then the Company shall,
through the Date of Termination, pay Executive his accrued and unpaid Base
Salary or, if applicable, his Adjusted Base Salary at the rate in effect at the
time Notice of Termination is given, and accrued and unpaid Incentive
Compensation, if any, for the fiscal year preceding termination. Thereafter, the
Company shall have no further obligations to Executive except as otherwise
expressly provided under this Agreement, provided any such termination shall not
adversely affect or alter Executive's rights under any employee benefit plan of
the Company in which Executive, at the Date of Termination, has a vested
interest, unless otherwise provided in such employee benefit plan or any
agreement or other instrument attendant thereto.
(d) If Executive terminates his employment for Good Reason as
provided in Subparagraph 6(e) or if Executive's employment is terminated by the
Company without Cause as provided in Subparagraph 6(d), then the Company shall,
through the Date of Termination, pay Executive his accrued and unpaid Base
Salary or, if applicable, his Adjusted Base Salary at the rate in effect at the
time Notice of Termination is given and accrued and unpaid Incentive
Compensation, if any, for the fiscal year preceding termination and Pro Rata
Incentive Compensation, if any, under Subparagraph 3(a). In addition, subject to
signing by Executive of a general release of claims in a form and manner
satisfactory to the Company,
(i) the Company shall continue Executive's compensation at a
rate equal to the sum of Executive's Average Base Salary and his Average
Incentive Compensation, payable for the remaining length of the Period
of Employment after the Date of Termination, but in no event for fewer
than twenty-four (24) months (the "Severance Amount"). The Severance
Amount shall be paid out in substantially equal bi-weekly installments,
in arrears; provided, however, that in the event Executive commences any
employment with an employer other than the Company during the twelve
(12) month period ending on the first anniversary of the Date of
termination, the Company shall be entitled to set-off against the
remaining Severance Amount fifty percent (50%) of the amount of any cash
compensation received by Executive from the new employer during such
period; provided,
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further, that in the event Executive commences any employment with, or
is employed by, any employer other than the Company during the twelve
(12) month period following the first anniversary of the Date of
Termination, the Company shall be entitled to set-off against the
remaining Severance Amount twenty-five percent (25%) of the amount of
any cash compensation received by Executive from such employer during
such period. From time to time, Executive may be asked to certify to the
Company that he has not accepted employment with a new employer
(including, without limitation, contract and consulting agreements). For
purposes of this Agreement, "Average Base Salary" shall mean the average
of the annual Base Salary or, if applicable, Adjusted Base Salary
received by Executive for each of the three (3) immediately preceding
fiscal years or such fewer number of complete fiscal years as Executive
may have been employed by the Company. For purposes of this Agreement,
"Average Incentive Compensation" shall mean the average of the annual
incentive compensation under Subparagraph 3(a) received by Executive for
the three (3) immediately preceding fiscal years or such fewer number of
complete fiscal years as Executive may have been employed by the
Company. In no event shall "Average Incentive Compensation" include any
sign-on bonus, retention bonus or any other special bonus.
Notwithstanding the foregoing, if the Executive breaches any of the
provisions contained in Paragraphs 4 and 5 of this Agreement, all
payments of the Severance Amount shall immediately cease.
Notwithstanding the foregoing, in the event Executive terminates his
employment for Good Reason as provided in Subparagraph 6(e), he shall be
entitled to the Severance Amount only if he provides the Notice of
Termination provided for in Subparagraph 6(f) within thirty (30) days
after the occurrence of the event or events which constitute such Good
Reason as specified in clauses (A), (B), (C), (D), (E) and (F) of
Subparagraph 6(e);
(ii) in addition to any other benefits to which Executive may be
entitled in accordance with the Company's then existing severance
policies, the Company shall, for a period of one (1) year commencing on
the Date of Termination, pay such health insurance premiums as may be
necessary to allow Executive, Executive's spouse and dependents to
continue to receive health insurance coverage substantially similar to
the coverage they received prior to his termination of employment.
(e) If Executive's employment is terminated by the Company for Cause
as provided in Subparagraph 6(c), then the Company shall, through the Date of
Termination, pay Executive his accrued and unpaid Base Salary or, if applicable,
his Adjusted Base Salary at the rate in effect at the time Notice of Termination
is given, and accrued and unpaid Incentive Compensation, if any, for the fiscal
year preceding termination. Thereafter, the Company shall have no further
obligations to Executive except as otherwise expressly provided under this
Agreement, provided any such termination shall not adversely affect or alter
Executive's rights under any employee benefit plan of the Company in which
Executive, at the Date of Termination, has a vested interest, unless otherwise
provided in such employee benefit plan or any agreement or other instrument
attendant thereto.
11
(f) Regardless of the reason for termination, for a period of five
(5) years beginning on the Date of Termination, the Company will provide such
reasonable assistance and support to Executive as he shall reasonably require in
connection with the preparation and filing of tax returns, statements and forms
insofar as such returns, statements or forms relate to Executive's association
with the Company or any of its predecessors or affiliates. At the Company's
election, such assistance and support shall be provided by either tax personnel
from the Company or certified public accountants selected and compensated by the
Company.
(g) Nothing contained in the foregoing Subparagraphs 7(a) through
7(e) shall be construed so as to affect Executive's rights or the Company's
obligations relating to agreements or benefits which are unrelated to
termination of employment.
8. Change in Control Payment. The provisions of this Paragraph 8 set forth
certain terms of an agreement reached between Executive and the Company
regarding Executive's rights and obligations upon the occurrence of a Change in
Control of the Company. These provisions are intended to assure and encourage in
advance Executive's continued attention and dedication to his assigned duties
and his objectivity during the pendency and after the occurrence of any such
event. These provisions shall apply in lieu of, and expressly supersede, the
provisions of Subparagraph 7(d)(i) regarding severance pay upon a termination of
employment, if such termination of employment occurs within eighteen (18) months
after the occurrence of the first event constituting a Change of Control;
provided that such first event occurs during the Period of Employment. These
provisions shall terminate and be of no further force or effect beginning
eighteen (18) months after the occurrence of a Change of Control.
(a) Change in Control.
(i) If within eighteen (18) months after the occurrence of the
first event constituting a Change in Control, Executive's employment is
terminated by the Company without Cause as provided in Subparagraph 6(d)
or Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e), then the Company shall pay Executive the Severance
Amount as provided in Subparagraph 7(d)(i) in substantially bi-weekly
installments, in arrears, over twenty-four (24) months. Notwithstanding
the foregoing, if the Executive breaches any of the provisions contained
in Paragraphs 4 and 5 of this Agreement, all payments of the Severance
Amount shall immediately cease;
(ii) Within fifteen (15) days after Executive becomes entitled
to receive the Severance Amount under (i) above, the Company shall place
funds in an amount equal to the estimated Severance Amount in escrow,
pursuant to arrangements that are mutually acceptable to the Company and
Executive (the "Escrow Arrangement"). The Escrow Arrangement shall be
maintained until the final installment payment of the Severance Amount
has been made;
(iii) Notwithstanding anything to the contrary in any applicable
option agreement or stock-based award agreement, if Executive terminates
his employment for Good Reason
12
as provided in Subparagraph 6(e) or if Executive's employment is
terminated by the Company without Cause as provided in Subparagraph 6(d)
within eighteen (18) months of a Change in Control, all stock options
and other stock-based awards granted to Executive by the Company shall
immediately accelerate and become exercisable and non-forfeitable as of
the Date of Termination, and at any time during the 360 days commencing
on the Date of Termination, Executive or his estate may by five (5)
days' advance written notice given to the Company and irrespective of
whether Executive is then employed by the Company or then living, and
solely at the election of Executive or his estate, require the Company
to:
(1) immediately purchase any unexercised portion of the
Option from Executive or his estate in exchange for an amount
equal to the product of (x) the sum of (A) the per share exercise
price of the Option and (B) $2.09, times (y) the number of shares
subject to the unexercised portion of the Option, which amount
shall be delivered in cash in immediately negotiable funds in
Dallas County, Texas, to Executive or his estate, or
(2) allow Executive to exercise all or any part of such
Option at the option prices therefor specified in the grant of
the Option.
Executive shall also be entitled to any other rights and benefits with
respect to stock-related awards, to the extent 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; and
(iv) The Company shall, for a period of one (1) year commencing
on the Date of Termination, pay such health insurance premiums as may be
necessary to allow Executive, Executive's spouse and dependents to
continue to receive health insurance coverage substantially similar to
the coverage they received prior to his termination of employment.
(b) Gross Up Payment
(i) Excess Parachute Payment. If Executive incurs the tax (the
"Excise Tax" imposed by Section 4999 of the Internal Revenue Code of
1986 (the "Code") on "excess parachute payments" within the meaning of
Section 280G(b)(1) of the Code, the Company will pay to Executive an
amount (the "Gross Up Payment" such that the net amount retained by
Executive, after deduction of any Excise Tax on the excess parachute
payment and any federal, state and local income taxes and employment
taxes (together with penalties and interest) and Excise Tax upon the
payment provided for by this Subparagraph 8(c)(i), will be equal to the
Severance Amount.
(ii) Applicable Rates. For purposes of determining the amount of
the Gross Up Payment, Executive will be deemed to pay federal income
taxes at the highest marginal
13
rate of federal income taxation in the calendar year in which the Gross
Up Payment is to be made and state and local income taxes at the highest
marginal rates of taxation in the state and locality of Executive's
residence on the date of Executive's Termination, net of the maximum
reduction in federal income taxes that could be obtained from deduction
of such state and local taxes.
(iii) Determination of Gross Up Payment Amount. The determination
of whether the Excise Tax is payable and the amount thereof will be
based upon the opinion of tax counsel selected by Executive and approved
by the Company, which approval will not be unreasonably withheld. If
such opinion is not finally accepted by the Internal Revenue Service (or
state and local taxing authorities), then appropriate adjustments to the
Excise Tax will be computed and additional Gross Up Payments will be
made in the manner provided by this Subparagraph (c).
(iv) Time for Payment. The Company will pay the estimated amount
of the Gross Up Payment in cash to Executive at such time or times when
the Excise Tax is due. Executive and the company agree to reasonably
cooperate in the determination of the actual amount of the Gross Up
Payment. Further, Executive and the Company agree to make such
adjustments to the estimated amount of the Gross Up Payment as may be
necessary to equal the actual amount of the Gross Up Payment, which in
the case of Executive will refer to refunds of prior overpayments and in
the case of the Company will refer to makeup of prior underpayments.
(c) Definitions. For purposes of this Paragraph 8, the following
terms shall have the following meanings:
"Change in Control" shall mean any of the following:
(a) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (the
"Acquiring Person"), other than the Company, or any of its Subsidiaries
or any Investor or Excluded Group, of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty-five
percent (35%) or more of the combined voting power or economic interests
of the then outstanding voting securities of the Company entitled to
vote generally in the election of directors; provided, however, that any
transfer from any Investor or Excluded Group will not result in a Change
in Control if such transfer was part of a series of related transactions
the effect of which, absent the transfer to such Acquiring Person by the
Investor or Excluded Group, would not have resulted in the acquisition
by such Acquiring Person of thirty-five percent (35%) or more of the
combined voting power or economic interests of the then outstanding
voting securities; or
(b) during any period of twelve (12) consecutive months after
the Issuance Date, the individuals who at the beginning of any such 12-
month period constituted a majority of the Class A Directors and Class C
Directors (the "Incumbent Non-Investor
14
Majority") cease for any reason to constitute at least a majority of
such Class A Directors and Class C Directors; provided that (i) any
individual becoming a director whose election, or nomination for
election by the Company's stockholders, was approved by a vote of the
stockholders having the right to designate such director and (ii) any
director whose election to the Board or whose nomination for election by
the stockholders of the Company was approved by the requisite vote of
directors entitled to vote on such election or nomination in accordance
with the Restated Certificate of Incorporation of the Company, shall, in
each such case, be considered as though such individual were a member of
the Incumbent Non-Investor Majority, but excluding, as a member of the
Incumbent Non-Investor Majority, any such individual whose initial
assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of the
Company (as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) and further excluding any person who
is an affiliate or associate of an Acquiring Person having or proposing
to acquire beneficial ownership of twenty-five percent (25%) or more of
the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors; or
(c) the approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, with respect to
which all or substantially all of the individuals and entities who were
the respective beneficial owners of the voting securities of the Company
immediately prior to such reorganization, merger or consolidation do
not, following such reorganization, merger or consolidation,
beneficially own, directly or indirectly, more than fifty-seven and one-
half percent (57.5%) of the combined voting power of the then
outstanding voting securities entitled to vote generally in the election
of directors of the Company resulting from such reorganization, merger
or consolidation; or
(d) the sale or other disposition of assets representing fifty
percent (50%) or more of the assets of the Company in one transaction or
series of related transactions.
All defined terms used in the definition of "Change in Control" shall
have the same meaning as set forth in the Certificate of Designation of
Series B Convertible Preferred Stock of Wyndham International, Inc.
"Company" shall mean not only Wyndham International, Inc., but
also its successors by merger or otherwise.
9. Notice. For purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
15
if to the Executive:
At his home address as shown
in the Company's personnel records;
if to the Company:
Wyndham International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President of Human Resources and General
Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
10. Miscellaneous. No provisions of this Agreement may be modified, waived,
or discharged unless such waiver, modification, or discharge is agreed to in
writing and signed by Executive and such officer of the Company as may be
specifically designated by the Board. No waiver by either party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. This Agreement, with
its Exhibit A, constitutes the entire agreement between the parties with respect
to the subject matter hereof. No agreements or representations, oral or
otherwise, express or implied, unless specifically referred to herein, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement and Exhibit A. This Agreement
supersedes all prior agreements between the parties with respect to any related
subject matter. The validity, interpretation, construction, and performance of
this Agreement shall be governed by the laws of the State of Texas (without
regard to principles of conflicts of laws).
11. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect. The invalid portion of this Agreement, if any, shall be modified by any
court having jurisdiction to the extent necessary to render such portion
enforceable.
12. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
13. Arbitration; Other Disputes. In the event of any dispute or controversy
arising under or in connection with this Agreement, the parties shall first
promptly try in good faith to settle such dispute or controversy by mediation
under the applicable rules of the American Arbitration Association before
resorting to arbitration. In the event such dispute or controversy remains
16
unresolved in whole or in part for a period of thirty (30) days after it arises,
the parties will settle any remaining dispute or controversy exclusively by
arbitration in Dallas, Texas, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Notwithstanding the above,
the Company shall be entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any continuation of any violation of
Paragraph 4 or 5 hereof. Furthermore, should a dispute occur concerning
Executive's mental or physical capacity as described in Subparagraph 6(b), 6(c)
or 7(b), a doctor selected by Executive and a doctor selected by the Company
shall be entitled to examine Executive. If the opinion of the Company's doctor
and Executive's doctor conflict, the Company's doctor and Executive's doctor
shall together agree upon a third doctor, whose opinion shall be binding. Any
amount to which Executive is entitled under this Agreement (including any
disputed amount), which is not paid when due, shall bear interest at a rate
equal to the lesser of eighteen percent (18%) per annum or the maximum lawful
rate.
14. Third-Party Agreements and Rights. Executive represents to the Company
that Executive's execution of this Agreement, Executive's employment with the
Company and the performance of Executive's proposed duties for the Company will
not violate any obligations Executive may have to any employer or other party,
and Executive will not bring to the premises of the Company any copies or other
tangible embodiments of non-public information belonging to or obtained from any
such previous employment or other party.
15. Litigation and Regulatory Cooperation. During and after Executive's
employment, Executive shall reasonably cooperate with the Company in the defense
or prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Company which relate to events or
occurrences that transpired while Executive was employed by the Company;
provided, however, that such cooperation shall not materially and adversely
affect Executive or expose Executive to an increased probability of civil or
criminal litigation. Executive's cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Company at mutually convenient times. During and after Executive's
employment, Executive also shall cooperate fully with the Company in connection
with any investigation or review of any federal, state or local regulatory
authority as any such investigation or review relates to events or occurrences
that transpired while Executive was employed by the Company. The Company shall
also provide Executive with compensation on an hourly basis (to be derived from
the sum of his Base Salary or, if applicable, Adjusted Base Salary and Average
Incentive Compensation) for requested litigation and regulatory cooperation that
occurs after his termination of employment, and reimburse Executive for all
costs and expenses incurred in connection with his performance under this
Paragraph 15, including, but not limited to, reasonable attorneys' fees and
costs.
16. Gender Neutral. Wherever used herein, a pronoun in the masculine gender
shall be considered as including the feminine gender unless the context clearly
indicates otherwise.
17
[Signature Page Follows]
18
IN WITNESS WHEREOF, the parties have executed this Agreement effective
on the date and year first above written.
WYNDHAM INTERNATIONAL, INC.
By:_/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its:_______________________________
___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
19
Exhibit A
---------
WYNDHAM INTERNATIONAL, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Dated as of __________ __, ▇▇▇▇
▇▇▇▇▇▇▇ International, Inc., a corporation organized under the laws of
Delaware (the "Company"), hereby grants to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an Employee of the
Company (the "Optionee"), as of _________ __, 2001 (the "Date of Grant"), a non-
qualified option (the "Option") to purchase from the Company 550,000 shares of
Class A common stock of the Company ("Shares"), at the price of $________ per
Share, subject to the terms and conditions set forth below. Such grant is
pursuant to the Wyndham International, Inc. 1997 Incentive Plan (the "Plan") and
is made as an inducement to Optionee to enter into the Employment Agreement
between Optionee and the Company of even date herewith (the "Employment
Agreement").
1. Option Subject to Acceptance of Option Agreement and Employment Agreement.
-------------------------------------------------------------------------
The Option may not be exercised unless the Optionee accepts this Option
Agreement and the Employment Agreement by executing both the Option
Agreement and the Employment Agreement and returning such original
execution copies to the Company.
2. Time and Manner of Exercise of Option.
-------------------------------------
(a) Maximum Term of Option. The Expiration Date of this Option is the date
----------------------
that is ten years from the Date of Grant. This Option may not be
exercised on or after the Expiration Date.
(b) Vesting Schedule. No portion of this Option may be exercised until
----------------
such portion shall have vested. Except as set forth in Section 3 of
this Agreement, this Option shall be vested and exercisable with
respect to the following number of Shares on the dates indicated
below:
============================================================
Vesting Schedule
Additional Number of
Shares Exercisable Vesting Date
------------------------------------------------------------
137,500 (25%) 1 year after Date of Grant
------------------------------------------------------------
137,500 (25%) 2 years after Date of Grant
------------------------------------------------------------
137,500 (25%) 3 years after Date of Grant
------------------------------------------------------------
137,500 (25%) 4 years after Date of Grant
============================================================
In the event of a Change in Control during the Period of Employment
(each as defined in the Employment Agreement), the vesting date for
any unvested portions of this Option shall be accelerated by two
years. In the event of a Change in
Control of the Company, if within 18 months after such Change in
Control the Optionee's employment with the Company is terminated by
the Company without Cause (as defined in the Employment Agreement) or
for Good Reason (as defined in the Employment Agreement), any unvested
portions of this Option shall fully vest and become exercisable.
A partial exercise of this Option shall not affect Optionee's right to
exercise this Option with respect to the remaining Shares.
(c) Method of Exercise of Option. Subject to the limitations set forth in
----------------------------
this Agreement, the Option may be exercised by the Optionee (1) by
giving written notice to the Company specifying the number of whole
Shares to be purchased and accompanied by payment of the Option price
in full (or arrangement made for such payment to the Company's
satisfaction) either (i) in cash or cash equivalent acceptable to the
Committee, (ii) in previously owned whole Shares (which the Optionee
has held for at least six months prior to the delivery of such Shares
or which the Optionee purchased on the open market and for which the
Optionee has good title, free and clear of all liens and encumbrances)
having a Fair Market Value, determined as of the date of exercise,
equal to the aggregate purchase price payable pursuant to the Option
by reason of such exercise, (iii) in cash or a check payable and
acceptable to the Company by a broker-dealer acceptable to the Company
to whom the Optionee has submitted an irrevocable notice of exercise
or (iv) a combination of two or more of the foregoing, and (2) by
executing such documents as the Company may reasonably request. Any
fraction of a Share which would be required to pay such purchase price
shall be disregarded and the remaining amount due shall be paid in
cash by the Optionee.
The delivery of certificates representing the Shares subject to the
Option will be contingent upon the Company's receipt from Optionee of
(1) full payment of the Option price, as set forth above, and (2) any
agreement, statement or other evidence that the Company may require to
satisfy itself that the issuance of Shares to be purchased pursuant to
the exercise of the Option and the subsequent resale of Shares will be
in compliance with applicable laws and regulations.
3. Exercise After Termination of Employment. If the Optionee's employment by
----------------------------------------
the Company or an Affiliate is terminated, the period within which to
exercise the Option may be subject to earlier termination as set forth
below. Any transfer of employment from the Company to any Affiliate of the
Company shall not be deemed to be a termination of employment for purposes
of this Agreement.
(a) Termination Due to Death. If the Optionee's employment terminates by
------------------------
reason of death, the Option held by the Optionee shall vest and become
exercisable in accordance with the Vesting Schedule as set forth in
Section 2(b), plus an additional number of Shares that would have
vested on the next vesting anniversary date. The Optionee's legal
representative or legatee may exercise the Option to the extent
2
exercisable in accordance with this Section 3(a), for a period of 360
days from the date of death or until the Expiration Date, if earlier.
Any portion of the Option that is not exercisable at the time of death
shall terminate immediately and be of no further force or effect.
(b) Termination Due to Disability. If the Optionee's employment terminates
-----------------------------
by reason of incapacity due to physical or mental illness which
resulted in his absence from his duties with the Company on a full-
time basis for 180 calendar days in the aggregate in any 12-month
period, the Option held by the Optionee shall vest and become
exercisable in accordance with the Vesting Schedule as set forth in
Section 2(b), plus an additional number of Shares that would have
vested on the next vesting anniversary date. The Optionee may exercise
the Option to the extent exercisable in accordance with this Section
3(b), for a period of 360 days from the date of termination of
employment or until the Expiration Date, if earlier. Any portion of
the Option that is not exercisable upon termination of employment
shall terminate immediately and be of no further force or effect.
(c) Termination without Cause or for Good Reason. If the Optionee's
--------------------------------------------
employment is terminated by the Company without Cause (as defined in
the Employment Agreement) or the Optionee resigns from the Company for
Good Reason (as defined in the Employment Agreement), the Option held
by the Optionee shall continue to vest and become exercisable in
accordance with the Vesting Schedule as set forth in Section 2(b) for
an additional 24 months. The Optionee may exercise the Option, to the
extent exercisable in accordance with this Section 3(c), for a period
of 360 days after the end of the 24-month period or until the
Expiration Date, if earlier. Any portion of the Option that is not
exercisable at the end of 24 months following termination of
employment shall terminate immediately upon termination of employment
and be of no further force or effect.
Notwithstanding the foregoing, if Optionee breaches any of the
provisions contained in Paragraph 4 or 5 of the Employment Agreement,
(i) any portion of the Option that vested or will vest by virtue of
this Section 3(c) shall immediately terminate and be of no force and
effect, and (ii) to the extent any portion of the Option that vested
by virtue of this Section 3(c) has been exercised, Optionee shall be
required to disgorge to the Company the difference between the Fair
Market Value per Share on the date of exercise and the Option price
per Share, multiplied by the number of Shares acquired by Optionee.
(d) Termination for Cause. If the Optionee's employment is terminated for
---------------------
Cause (as defined in the Employment Agreement), the Option held by the
Optionee shall terminate immediately upon termination of employment
and be of no further force and effect.
(e) Other Termination. If the Optionee's employment terminates for any
-----------------
reason not covered in Subsections (a), (b), (c) or (d) of this Section
3, the Option held by the
3
Optionee may be exercised, to the extent exercisable on the date of
termination pursuant to the Vesting Schedule in Section 2(b), for a
period of three (3) months from the date of termination or until the
Expiration Date, if earlier. Any portion of the Option that is not
exercisable at such time shall terminate immediately upon termination
of employment and be of no further force or effect.
4. Incorporation of Plan. Notwithstanding anything herein to the contrary,
---------------------
this Option shall be subject to and governed by all the terms and
conditions of the Plan. Capitalized terms in this Agreement shall have the
meaning specified in the Plan, unless a different meaning is specified
herein. All references herein to the Plan shall mean the Plan in effect as
of the date hereof. In the event of any conflict between the provisions in
the Plan and the provisions in this Agreement, the provisions of the Plan
shall govern.
5. Additional Terms and Conditions of Option.
-----------------------------------------
(a) Nontransferability of Option. This Agreement is personal to the
----------------------------
Optionee, is non-assignable and is not transferable in any manner, by
operation of law or otherwise, other than by will or the laws of
descent and distribution. This Option is exercisable, during the
Optionee's lifetime, only by the Optionee, and thereafter only by the
Optionee's legal representative or legatee.
(b) Delivery of Certificates. Upon the exercise of the Option, in whole or
------------------------
in part, the Company shall deliver or cause to be delivered one or
more certificates representing the number of Shares purchased against
full payment therefor. The Company shall pay all original issue or
transfer taxes and all fees and expenses incident to such delivery.
(c) Option Confers No Rights as Stockholder. The Optionee shall not be
---------------------------------------
entitled to any privileges of ownership with respect to Shares subject
to the Option unless and until purchased and delivered upon the
exercise of the Option, in whole or in part, and the Optionee becomes
a stockholder of record with respect to such delivered Shares; and the
Optionee shall not be considered a stockholder of the Company with
respect to any such Shares not so purchased and delivered.
(d) Decisions of Committee. The Committee shall have the right to resolve
----------------------
all questions which may arise in connection with the Option or its
exercise. Any interpretation, determination or other action made or
taken by the Committee regarding this Agreement shall be final,
binding and conclusive.
(e) Reservation of Shares. The Company shall at all times prior to the
---------------------
expiration or termination of the Option reserve or cause to be
reserved and keep or cause to be kept available, either in its
treasury or out of its authorized but unissued shares of common stock,
the full number of shares of common stock of the Company subject to
the Option from time to time.
4
(f) Change in Capital Structure. The terms of this Option shall be
---------------------------
adjusted as the Committee determines is equitably required in the
event the Company effects one or more stock dividends, stock split-
ups, subdivisions or consolidations of shares or other similar changes
in capitalization.
(g) Fractional Shares. Fractional shares shall not be issuable hereunder,
-----------------
and when any provision hereof may entitle Optionee to a fractional
share such fraction shall be disregarded.
6. Tax Withholding. The Optionee shall, not later than the date as of which
---------------
the exercise of this Option becomes a taxable event for Federal income tax
purposes, pay to the Company or make arrangements satisfactory to the
Committee for payment of any Federal, state, and local taxes required by
law to be withheld on account of such taxable event. Subject to the
approval of the Committee, the Optionee may elect to have the minimum tax
withholding obligation satisfied, in whole or in part, by (i) authorizing
the Company to withhold from Shares to be issued, or (ii) transferring to
the Company a number of previously owned whole Shares (which the Optionee
has held for at least six months prior to the delivery of such Shares or
which the Optionee purchased on the open market and for which the Optionee
has good title, free and clear of all liens and encumbrances) having an
aggregate Fair Market Value, determined as of the date of exercise, that
would satisfy the minimum withholding amount due.
7. Miscellaneous Provisions.
------------------------
(a) Designation as Non-qualified Stock Option. The Option is hereby
-----------------------------------------
designated as not constituting an "incentive stock option" within the
meaning of Section 422 of the Code. This Agreement shall be
interpreted and treated consistently with such designation.
(b) Successors. This Agreement shall be binding upon and inure to the
----------
benefit of any successor or successors of the Company and any person
or persons who shall, upon the death of the Optionee, acquire any
rights hereunder in accordance with this Agreement or the Plan.
(c) Notices. All notices, requests or other communications provided for in
-------
this Agreement shall be made, if to the Company, to the Secretary of
the Company at the Company's principal executive office, and if to the
Optionee, to his or her address on the books of the Company (or to
such other address as the Company or the Optionee may give to the
other for purposes of notice hereunder).
All notices, requests or other communications provided for in this
Agreement shall be made in writing either (a) by personal delivery to
the party entitled thereto, (b) by facsimile with confirmation of
receipt, (c) by mailing in the United States mail to the last known
address of the party entitled thereto or (d) by express courier
service. The notice, request or other communication shall be deemed to
be
5
received upon personal delivery, upon confirmation of receipt of
facsimile transmission or upon receipt by the party entitled thereto
if by United States mail or express courier service; provided,
however, that if a notice, request or other communication in not
received during regular business hours, it shall be deemed to be
received on the next succeeding business day of the Company.
(d) Governing Law. This Agreement and all determinations made and actions
-------------
taken pursuant hereto and thereto, to the extent not governed by the
laws of the United States, shall be governed by the laws of the State
of Delaware and construed in accordance therewith without giving
effect to principles of conflicts of laws.
(e) Counterparts. This Agreement may be executed in two counterparts, each
------------
of which shall be deemed an original and both of which together shall
constitute one and the same instrument.
(f) Further Assurances. The Company and the Optionee shall execute and
------------------
deliver such further instruments and take such additional action as
each party may reasonably request to effect, consummate, confirm or
evidence the grant of the Option to the Optionee, and they shall each
execute such documents as may be reasonably necessary to assist each
other in preserving or perfecting their respective rights in the
Option.
(g) No Right to Continued Employment. This Agreement does not confer upon
--------------------------------
Optionee any right to continue in the employ of the Company or an
Affiliate, nor shall it interfere in any way with the right of the
Company or an Affiliate to terminate such employment at any time.
WYNDHAM INTERNATIONAL, INC.
By: _________________________
Title: _________________________
Accepted this ____ day of _________, 2001
Optionee Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Signature: ____________________________
6
EXHIBIT B
WYNDHAM INTERNATIONAL, INC.
RESTRICTED UNIT AWARD AGREEMENT
Dated as of ___________ ___, 2001
Wyndham International, Inc., a corporation organized under the laws of
Delaware (the "Company"), hereby awards to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Participant"),
as of the date hereof (the "Award Date"), a Restricted Unit Award (the "Award")
covering the right to receive 150,000 shares of Class A common stock (the
"Shares") of the Company, subject to the terms and conditions set forth below.
Such grant is pursuant to the Wyndham International, Inc. 1997 Incentive Plan
(the "Plan").
1. Award Subject to Acceptance of Agreement. The Award shall not be valid and
----------------------------------------
binding unless the Participant accepts this Agreement by executing it in
the space provided below and returning such original execution copy to the
Company.
2. Vesting of Award. No portion of this Award may be exercised until such
----------------
portion shall have vested (such unvested portion of the Award, the
"Restricted Units"). Except as set forth in Section 3 of this Agreement,
and subject to the discretion of the Committee or the Board of Directors to
accelerate the vesting schedule hereunder, this Award shall be vested and
nonforfeitable with respect to the following number of Restricted Units on
the dates indicated:
===============================================================
Number of Restricted Units
Subject to Vesting Date Restrictions Lapse
---------------------------------------------------------------
50,000 (33 1/3%) 1 year after Award Date
---------------------------------------------------------------
50,000 (33 1/3%) 2 years after Award Date
---------------------------------------------------------------
50,000 (33 1/3%) 3 years after Award Date
===============================================================
3. Termination of Employment. If the Participant's employment by the Company
-------------------------
or an Affiliate is terminated prior to the dates the restrictions lapse as
set forth above, Participant shall forfeit all Restricted Units which have
not yet vested, except as provided below. Any transfer of employment from
the Company to an Affiliate shall not be deemed to be a termination of
employment for purposes of this Agreement.
(a) Termination Due to Death. If the Participant's employment terminates
------------------------
by reason of death prior to the dates the restrictions lapse as set
forth above, Participant's estate shall become fully vested in all the
Restricted Units.
1
(b) Termination Due to Disability. If the Participant's employment
-----------------------------
terminates by reason of disability as described in Subparagraph 6(b)
of the Employment Agreement dated as of the date hereof between
Participant and the Company (the "Employment Agreement") prior to the
dates the restrictions lapse as set forth above, Participant shall
become fully vested in all the Restricted Units.
(c) Termination for Cause or Without Good Reason. If the Participant's
--------------------------------------------
employment is terminated for Cause (as defined in the Employment
Agreement) or if the Participant terminates his employment for any
reason other than Good Reason (as defined in the Employment
Agreement), death, or disability, the unvested portion of the Award
shall terminate immediately and the Participant shall have no further
rights or interest therein.
(d) Termination without Cause or for Good Reason or Other Termination. If
-----------------------------------------------------------------
the Participant's employment is terminated by the Company without
Cause (as defined in the Employment Agreement) or the Participant
resigns from the Company for Good Reason (as defined in the Employment
Agreement) or if the Participant's employment terminates for any
reason not covered in Subsections (a), (b) or (c) of this Section 3,
the Award shall continue to vest in accordance with the Vesting
Schedule as set forth in Section 2 for an additional 24 months. Any
portion of the Award that is not vested at the end of 24 months
following termination of employment shall terminate immediately and
the Participant shall have no further rights or interest therein.
Notwithstanding the foregoing, if the Participant breaches any of the
provisions contained in Paragraph 4 or 5 of the Employment Agreement,
(i) any portion of the Award that vested or will vest by virtue of
this Section 3(d) shall immediately terminate and the Participant
shall have no further rights or interest therein, and (ii) to the
extent any portion of the Award has vested by virtue of this Section
3(d), the Participant shall be required to pay to the Company the fair
market value per Share on the date of vesting, multiplied by the
number of Shares acquired by the Participant.
4. Incorporation of Plan. Notwithstanding anything herein to the contrary,
---------------------
this Award shall be subject to and governed by all the terms and conditions
of the Plan. Capitalized terms in this Agreement shall have the meaning
specified in the Plan, unless a different meaning is specified herein. All
references herein to the Plan shall mean the Plan in effect as of the date
hereof. In the event of any conflict between any provisions in the Plan
and the provisions in this Agreement, the provisions of the Plan shall
govern.
5. Additional Terms and Conditions of Award.
----------------------------------------
(a) Non-Transferability of Award. The Restricted Units shall not be
----------------------------
transferable by Participant other than by will and the laws of descent
and distribution until the restrictions on the Restricted Units lapse.
The Restricted Units shall not otherwise be transferred, assigned,
pledged or hypothecated for any purpose
2
whatsoever and are not subject, in whole or in part, to execution,
attachment, or similar process. Any attempted assignment, transfer,
pledge or hypothecation or other disposition of the Restricted Units,
other than in accordance with the terms set forth herein, shall be
void and of no effect.
(b) Delivery of Certificates. Upon the vesting of any part of the Award
------------------------
by virtue of the lapse of the restriction period pursuant to Section 2
above, the Company shall deliver or cause to be delivered a stock
certificate covering the requisite number of Shares so vested,
registered on the Company's books in the name of Participant. Upon
receipt of such stock certificate, Participant is free to hold or
dispose of such certificate at will.
(c) Award Confers No Rights as Stockholder. The Participant shall not be
--------------------------------------
entitled to any privileges of ownership with respect to Shares unless
and until delivered upon the vesting of the Award, in whole or in
part, and the Participant becomes a stockholder of record with respect
to such delivered Shares; and the Participant shall not be considered
a stockholder of the Company with respect to any such Shares not so
delivered.
Notwithstanding the foregoing, during the vesting period, Participant
shall be entitled to receive dividend equivalents in cash in the same
amount as actual dividends declared with respect to the underlying
Shares.
(d) Decisions of Committee. The Committee shall have the right to resolve
----------------------
all questions which may arise in connection with the Award, the lapse
of the restrictions, the Plan or this Agreement. Any interpretation,
determination or other action made or taken by the Committee regarding
this Agreement shall be final, binding and conclusive.
(e) Reservation of Shares. The Company shall at all times prior to the
---------------------
expiration or termination of the Award reserve or cause to be reserved
and keep or cause to be kept available, either in its treasury or out
of its authorized but unissued shares of Class A common stock, the
full number of shares of Class A common stock of the Company subject
to the Award from time to time.
(f) Change in Capital Structure. The terms of this Award shall be
---------------------------
adjusted as the Committee determines is equitably required in the
event the Company effects one or more stock dividends, stock split-
ups, subdivisions or consolidations of shares or other similar changes
in capitalization.
(g) Fractional Shares. Fractional shares shall not be issuable hereunder,
-----------------
and when any provision hereof may entitle Participant to a fractional
share such fraction shall be paid out in cash.
6. Tax Withholding. The Participant shall, not later than the date as of
---------------
which the vesting of this Award becomes a taxable event for Federal income
tax purposes, pay to the
3
Company or make arrangements satisfactory to the Committee for payment of
any Federal, state, and local taxes required by law to be withheld on
account of such taxable event. Subject to the approval of the Committee,
the Participant may elect to have such required minimum tax withholding
obligation satisfied, in whole or in part, by (i) authorizing the Company
to withhold from the Shares to be issued, or (ii) transferring to the
Company a number of previously owned whole Shares (which the Participant
has held for at least six months prior to the delivery of such Shares or
which the Participant purchased on the open market and for which the
Participant has good title, free and clear of all liens and encumbrances)
having an aggregate Fair Market Value, determined as of the date of
vesting, that would satisfy the withholding amount due.
7. Miscellaneous Provisions.
------------------------
(a) Successors. This Agreement shall be binding upon and inure to the
----------
benefit of any successor or successors of the Company and any person
or persons who shall, upon the death of the Participant, acquire any
rights hereunder in accordance with this Agreement or the Plan.
(b) Notices. All notices, requests or other communications provided for
-------
in this Agreement shall be made, if to the Company, to the Secretary
of the Company at the Company's principal executive office, and if to
the Participant, to his or her address on the books of the Company (or
to such other address as the Company or the Participant may give to
the other for purposes of notice hereunder).
All notices, requests or other communications provided for in this
Agreement shall be made in writing either (a) by personal delivery to
the party entitled thereto, (b) by facsimile with confirmation of
receipt, (c) by mailing in the United States mail to the last known
address of the party entitled thereto or (d) by express courier
service. The notice, request or other communication shall be deemed
to be received upon personal delivery, upon confirmation of receipt of
facsimile transmission or upon receipt by the party entitled thereto
if by United States mail or express courier service; provided,
however, that if a notice, request or other communication in not
received during regular business hours, it shall be deemed to be
received on the next succeeding business day of the Company.
(c) Governing Law. This Agreement and all determinations made and actions
-------------
taken pursuant hereto and thereto, to the extent not governed by the
laws of the United States, shall be governed by the laws of the State
of Delaware and construed in accordance therewith without giving
effect to principles of conflicts of laws.
(d) Counterparts. This Agreement may be executed in two counterparts,
------------
each of which shall be deemed an original and both of which together
shall constitute one and the same instrument.
(e) Force and Effect. The various provisions of this Agreement are
----------------
severable in their entirety. Any determination of invalidity or
unenforceability of any one provision
4
shall have no effect on the continuing force and effect of the
remaining provisions.
(f) Further Assurances. The Company and the Participant shall execute and
------------------
deliver such further instruments and take such additional action as
each party may reasonably request to effect, consummate, confirm or
evidence the grant of the Award to the Participant, and they shall
each execute such documents as may be reasonably necessary to assist
each other in preserving or perfecting their respective rights in the
Award.
(g) Conflict with Employment Agreement. If there shall be any conflict
----------------------------------
between provisions in this Agreement and the provisions in the
Employment Agreement, the provisions of the Employment Agreement shall
govern.
(h) No Right to Continued Employment. This Award does not confer upon
--------------------------------
Participant any right to continue in the employ of the Company or an
Affiliate, nor shall it interfere in any way with the right of the
Company or an Affiliate to terminate such employment at any time.
WYNDHAM INTERNATIONAL, INC.
By: _________________________
Title: ______________________
Accepted this ____ day of __________, 2001.
_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
"Participant"
5
Exhibit C
---------
NO PERSONAL LIABILITY NONRECOURSE PROMISSORY NOTE
Dallas, Texas
$450,000.00 March 3, 2001
FOR VALUE RECEIVED,. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (referred to herein as the
"Maker"), promises to pay to WYNDHAM INTERNATIONAL, INC., a Delaware corporation
(referred to herein as the "Payee"), or its assigns, the sum of FOUR HUNDRED
FIFTY THOUSAND DOLLARS AND NO CENTS ($450,000.00), together with interest on the
unpaid principal balance as set forth below.
1. Certain Definitions. The following items, when used in this Note,
-------------------
shall have the meanings assigned to them below:
(a) Stated Rate. The term "Stated Rate" means the interest rate,
-----------
as the same may be adjusted from time to time, paid by Payee during the term of
this Note pursuant to the revolving line of credit of the Payee as it may exist
from time to time.
(b) Maximum Rate. The term "Maximum Rate" shall mean, on any
------------
day, the highest nonusurious rate of interest (if any) permitted by applicable
law on such day. For purposes of Tex. Rev. Civ. Stat. ▇▇▇. Art. 5069-1.04(b), as
it may from time to time be amended, the "applicable rate ceiling" shall be the
"indicated rate" ceiling from time to time in effect as limited by Art.
5069.1.04(b); provided, however, that to the extent permitted by applicable law,
Payee reserves the right to change the "applicable rate ceiling" from time to
time by further notice and disclosure to Maker; and, provided further, that the
"highest nonusurious rate of interest permitted by applicable law" for purposes
of this Note shall not be limited to the applicable rate ceiling under Art.
5069-1.04 if federal laws or other state laws now or hereafter in effect and
applicable to this Note (and the interest contracted for, charged and collected
hereunder) shall permit a higher rate of interest.
2. Interest Rate. The unpaid principal balance from the date hereof
-------------
until maturity shall bear interest at a rate per annum equal to the lesser of
the Stated Rate or the Maximum Rate. Interest on the unpaid principal balance
hereof shall be calculated at a daily rate equal to 1/365th of the rate per
annum herein provided, and shall be charged and collected on the actual number
of days elapsed. After maturity, unpaid principal and, to the extent permitted
by law, interest on this Note shall bear interest at a rate equal to the lesser
of (i) four (4) percentage points over the Stated Rate or (ii) the Maximum Rate.
3. Payment of Principal and Interest. The entire principal balance
---------------------------------
and accrued interest on this Note shall become due and payable on the earlier of
(i) the third anniversary of the date hereof or (ii) ten (10) days after
termination of Maker's employment with Payee.
4. Events of Default.
-----------------
(a) The occurrence of any one or more of the following events
shall be deemed an event of default hereunder ("Event of Default"):
(i) The failure of Maker to make any payment on this Note
when the same becomes due and payable and such failure continues
for ten (10) days after notice of such failure to pay is received
by Maker from Payee; or
(ii) Maker shall commence any case, proceeding or other
action seeking reorganization, arrangement or adjustment of his
debts under any bankruptcy, insolvency or reorganization law, or
seek the appointment of a receiver, trustee or custodian for
Maker or for all of his property; or
(iii) Any case, proceeding or other action shall be
commenced against Maker seeking reorganization, arrangement or
adjustment of his debts under any bankruptcy, insolvency or
reorganization law or seeking the appointment of a receiver,
custodian or trustee for Maker or for all or substantially all of
his property, and such case, proceeding or other action remains
undismissed for a period of sixty (60) days after commencement
thereof.
(b) Upon the occurrence of an Event of Default hereunder, Payee, at
its option, may declare the entire unpaid principal balance and accrued interest
on this Note to be immediately due and payable without notice of any kind to
Maker and without any other presentment, demand, protest or notice of any kind,
all of which are hereby expressly waived by Maker, and may, at its option,
exercise any other right or remedy existing at law or in equity. Failure to
exercise any such right or remedy shall not constitute a waiver of the right to
exercise the same in the event of any subsequent default.
5. Voluntary Prepayment. Maker shall have the right and privilege
--------------------
from time to time to prepay in whole or in part the unpaid principal of this
Note without premium or penalty, provided that the accrued interest on the
amount prepaid is likewise paid, and the accrual of interest shall immediately
cease on any amount so prepaid.
6. Waiver. Maker waives demand, presentment for payment, notice of
------
nonpayment, protest and notice of protest and agrees to any substitution,
subordination or release of any parties primarily or secondarily liable hereon.
No waiver by Payee of any of its rights or remedies hereunder or under any other
document evidencing or securing this Note or otherwise shall be considered a
waiver of any other subsequent right to remedy of Payee; and no delay or
omission in the exercise or enforcement by Payee of any rights or remedies shall
be construed as a waiver of any right or remedy of Payee.
7. Attorneys' Fees. If this Note is not paid pursuant to the terms
---------------
hereof and is placed in the hands of an attorney for collection, or if it is
collected through bankruptcy or any other court proceeding after maturity, then
Payee shall be entitled to reasonable attorneys' fees for collection.
2
8. Limitation on Agreements. It is the intention of Maker and Payee
------------------------
to comply with applicable usury laws. In furtherance thereof, Maker and Payee
stipulate and agree that, notwithstanding any provision contained in this Note,
or in any other agreement between Maker and Payee, Payee shall never be entitled
to receive, collect or apply as interest on this Note, any amount in excess of
the Maximum Rate, and, in the event Payee ever receives, collects or applies as
interest any such excess, such amount that would be excessive interest shall be
deemed to be a partial prepayment of principal and treated hereunder as such,
and if the principal amount of the Note is paid in full, any remaining excess
shall forthwith be paid to Maker. In determining whether the interest paid or
payable, under any specific contingency, exceeds the Maximum Rate, Maker and
Payee shall, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payments (other than payments hereunder) as an
expense, fee or premium rather than as interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) amortize, prorate, allocate and
spread in equal parts the total amount of interest throughout the entire
contemplated term of this Note so that the interest rate is uniform throughout
such term.
9. Limitation on Liability. THIS NOTE SHALL BE NONRECOURSE TO MAKER
-----------------------
AND MAKER SHALL HAVE NO PERSONAL LIABILITY FOR THE PAYMENT HEREOF.
10. Governing Law and Venue. This Note is being executed and
-----------------------
delivered and is intended to be performed in the State of Texas. This Note shall
be construed as to both validity and performance and enforced in accordance with
and governed by the laws of the State of Texas.
11. Notices. All notices or other communications required or
-------
permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by certified or registered mail, postage
prepaid, with return receipt requested, addressed to Maker or Payee as follows:
If to Payee to:
Wyndham International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to Maker to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ at address on file with the Payee
or such other address as shall be furnished in writing by Maker or Payee to the
other, in accordance with the above provisions, and such notice or communication
shall be deemed to
3
have been given as of the date so delivered in the case of personal delivery or
three (3) days after deposit in the mail in the case of certified or registered
mail
12. Arbitration. Maker and Payee agree that any claim, controversy or
-----------
dispute arising out of or relating to this Note that cannot be amicably settled
shall be referred to binding arbitration as hereinafter provided. If arbitration
is required to resolve a dispute between Maker and Payee, Payee will notify the
American Arbitration Association ("AAA") and request AAA to select one person to
act as the arbitrator for resolution of this dispute. The selected arbitrator
will establish the rule for arbitration of the dispute and such rules will be
binding upon all parties to the arbitration proceeding. The arbitrator may use
the rules of the AAA for commercial arbitration but is encouraged to adopt such
rules as the arbitrator deems appropriate to accomplish the arbitration in the
quickest and least expensive manner possible. Accordingly, the arbitrator may
(i) dispense with any formal rules of evidence and allow hearsay testimony so as
to limit the number of witnesses required, (ii) minimize discovery procedures as
the arbitrator deems appropriate, (iii) act upon his understanding or
interpretation of the law on any issue without the obligation to research such
issue or accept or act upon briefs of the issue prepared by any party, (iv)
limit the time for presentation of any party's case as well as the amount of
information or number of witnesses to be presented in connection with any
hearing, (v) prevent any party from allowing an attorney to present or argue the
party's case before the arbitrator in any hearing, and (vi) impose any other
rules which the arbitrator believes appropriate to effect a resolution of the
dispute as quickly and inexpensively as possible. The arbitration shall take
place in Dallas, Texas. The arbitrator will have the exclusive authority to
determine and award costs of arbitration and the cost incurred by any party for
attorneys, advisors and consultants. Any award made by the arbitrator shall be
binding on Maker, Payee and all parties to the arbitration and shall be
enforceable to the fullest extent of the law.
13. Tax Matters. Maker acknowledges that Maker has not relied on any
-----------
advice from Payee with regard to the tax treatment of the Note.
MAKER
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
4
EXHIBIT D
---------
PROMISSORY NOTE
Dallas, Texas
$250,000.00 March 3, 2001
FOR VALUE RECEIVED, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (referred to herein as the "Maker"),
promises to pay to WYNDHAM INTERNATIONAL, INC., a Delaware corporation (referred
to herein as the "Payee"), or its assigns, the sum of TWO HUNDRED FIFTY THOUSAND
DOLLARS AND NO CENTS ($250,000.00).
1. Certain Definitions. The following items, when used in this Note,
-------------------
shall have the meanings assigned to them below:
(a) Stated Rate. The term "Stated Rate" means the interest rate, as
-----------
the same may be adjusted from time to time, paid by Payee during the term of
this Note pursuant to the revolving line of credit of the Payee as it may exist
from time to time.
(b) Maximum Rate. The term "Maximum Rate" shall mean, on any day, the
------------
highest nonusurious rate of interest (if any) permitted by applicable law on
such day. For purposes of Tex. Rev. Civ. Stat. ▇▇▇. Art. 5069-1.04(b), as it may
from time to time be amended, the "applicable rate ceiling" shall be the
"indicated rate" ceiling from time to time in effect as limited by Art.
5069.1.04(b); provided, however, that to the extent permitted by applicable law,
Payee reserves the right to change the "applicable rate ceiling" from time to
time by further notice and disclosure to Maker; and, provided further, that the
"highest nonusurious rate of interest permitted by applicable law" for purposes
of this Note shall not be limited to the applicable rate ceiling under Art.
5069-1.04 if federal laws or other state laws now or hereafter in effect and
applicable to this Note (and the interest contracted for, charged and collected
hereunder) shall permit a higher rate of interest.
2. Interest Rate. The unpaid principal balance from the date hereof until
-------------
maturity shall not bear interest. After maturity, unpaid principal on this Note
shall bear interest at a rate equal to the lesser of (i) four (4) percentage
points over the Stated Rate or (ii) the Maximum Rate. Interest on the unpaid
principal balance hereof shall be calculated at a daily rate equal to 1/365th of
the rate per annum herein provided, and shall be charged and collected on the
actual number of days elapsed.
3. Payment. The entire principal balance on this Note shall become due
-------
and payable on the earlier of (i) the fifth anniversary of the date hereof or
(ii) the Date of Termination (as defined in that certain Employment Agreement
between Maker and Payee dated as of March 3, 2001) of Maker's employment with
Payee in the event Maker's employment is terminated by Payee for "Cause" (as
defined in Subparagraph 6(c) of such Employment Agreement) or by
Maker for any reason other than "Good Reason" (as defined in Subparagraph 6(e)
of such Employment Agreement).
4. Events of Default.
-----------------
(a) The occurrence of any one or more of the following events shall
be deemed an event of default hereunder ("Event of Default"):
(i) The failure of Maker to make any payment on this Note when
the same becomes due and payable and such failure continues for ten
(10) days after notice of such failure to pay is received by Maker
from Payee; or
(ii) Maker shall commence any case, proceeding or other action
seeking reorganization, arrangement or adjustment of his debts under
any bankruptcy, insolvency or reorganization law, or seek the
appointment of a receiver, trustee or custodian for Maker or for all
of his property; or
(iii) Any case, proceeding or other action shall be commenced
against Maker seeking reorganization, arrangement or adjustment of his
debts under any bankruptcy, insolvency or reorganization law or
seeking the appointment of a receiver, custodian or trustee for Maker
or for all or substantially all of his property, and such case,
proceeding or other action remains undismissed for a period of sixty
(60) days after commencement thereof.
(b) Upon the occurrence of an Event of Default hereunder, Payee, at
its option, may declare the entire unpaid principal balance and accrued interest
on this Note to be immediately due and payable without notice of any kind to
Maker and without any other presentment, demand, protest or notice of any kind,
all of which are hereby expressly waived by Maker, and may, at its option,
exercise any other right or remedy existing at law or in equity. Failure to
exercise any such right or remedy shall not constitute a waiver of the right to
exercise the same in the event of any subsequent default.
5. Voluntary Prepayment. Maker shall have the right and privilege from
--------------------
time to time to prepay in whole or in part the unpaid principal of this Note
without premium or penalty, provided that the accrued interest on the amount
prepaid is likewise paid, and the accrual of interest shall immediately cease on
any amount so prepaid.
6. Waiver. Maker waives demand, presentment for payment, notice of
------
nonpayment, protest and notice of protest and agrees to any substitution,
subordination or release of any parties primarily or secondarily liable hereon.
No waiver by Payee of any of its rights or remedies hereunder or under any other
document evidencing or securing this Note or otherwise shall be considered a
waiver of any other subsequent right to remedy of Payee; and no delay or
omission in the exercise or enforcement by Payee of any rights or remedies shall
be construed as a waiver of any right or remedy of Payee.
2
7. Attorneys' Fees. If this Note is not paid pursuant to the terms hereof
---------------
and is placed in the hands of an attorney for collection, or if it is collected
through bankruptcy or any other court proceeding after maturity, then Payee
shall be entitled to reasonable attorneys' fees for collection.
8. Limitation on Agreements. It is the intention of Maker and Payee to
------------------------
comply with applicable usury laws. In furtherance thereof, Maker and Payee
stipulate and agree that, notwithstanding any provision contained in this Note,
or in any other agreement between Maker and Payee, Payee shall never be entitled
to receive, collect or apply as interest on this Note, any amount in excess of
the Maximum Rate, and, in the event Payee ever receives, collects or applies as
interest any such excess, such amount that would be excessive interest shall be
deemed to be a partial prepayment of principal and treated hereunder as such,
and if the principal amount of the Note is paid in full, any remaining excess
shall forthwith be paid to Maker. In determining whether the interest paid or
payable, under any specific contingency, exceeds the Maximum Rate, Maker and
Payee shall, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payments (other than payments hereunder) as an
expense, fee or premium rather than as interest, (ii) exclude voluntary
prepayments and the effects thereof, and (iii) amortize, prorate, allocate and
spread in equal parts the total amount of interest throughout the entire
contemplated term of this Note so that the interest rate is uniform throughout
such term.
9. Governing Law and Venue. This Note is being executed and delivered and
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is intended to be performed in the State of Texas. This Note shall be construed
as to both validity and performance and enforced in accordance with and governed
by the laws of the State of Texas.
10. Notices. All notices or other communications required or permitted
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hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or sent by certified or registered mail, postage prepaid,
with return receipt requested, addressed to Maker or Payee as follows:
If to Payee to:
Wyndham International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to Maker to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ at address on file with the Payee
or such other address as shall be furnished in writing by Maker or Payee to the
other, in accordance with the above provisions, and such notice or communication
shall be deemed to
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have been given as of the date so delivered in the case of personal delivery or
three (3) days after deposit in the mail in the case of certified or registered
mail
11. Arbitration. Maker and Payee agree that any claim, controversy or
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dispute arising out of or relating to this Note that cannot be amicably settled
shall be referred to binding arbitration as hereinafter provided. If arbitration
is required to resolve a dispute between Maker and Payee, Payee will notify the
American Arbitration Association ("AAA") and request AAA to select one person to
act as the arbitrator for resolution of this dispute. The selected arbitrator
will establish the rule for arbitration of the dispute and such rules will be
binding upon all parties to the arbitration proceeding. The arbitrator may use
the rules of the AAA for commercial arbitration but is encouraged to adopt such
rules as the arbitrator deems appropriate to accomplish the arbitration in the
quickest and least expensive manner possible. Accordingly, the arbitrator may
(i) dispense with any formal rules of evidence and allow hearsay testimony so as
to limit the number of witnesses required, (ii) minimize discovery procedures as
the arbitrator deems appropriate, (iii) act upon his understanding or
interpretation of the law on any issue without the obligation to research such
issue or accept or act upon briefs of the issue prepared by any party, (iv)
limit the time for presentation of any party's case as well as the amount of
information or number of witnesses to be presented in connection with any
hearing, (v) prevent any party from allowing an attorney to present or argue the
party's case before the arbitrator in any hearing, and (vi) impose any other
rules which the arbitrator believes appropriate to effect a resolution of the
dispute as quickly and inexpensively as possible. The arbitration shall take
place in Dallas, Texas. The arbitrator will have the exclusive authority to
determine and award costs of arbitration and the cost incurred by any party for
attorneys, advisors and consultants. Any award made by the arbitrator shall be
binding on Maker, Payee and all parties to the arbitration and shall be
enforceable to the fullest extent of the law.
12. Tax Matters. Maker acknowledges that Maker has not relied on any
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advice from Payee with regard to the tax treatment of the Note.
MAKER
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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