Exhibit 10.3
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") between Wyndham
International, Inc., a Delaware corporation (the "Company") and ▇▇▇▇▇▇ ▇▇▇▇▇▇
("Executive") is made as of the 21st date of May 2003, and is effective, as of
the 1st day of April, 2003 (the "Effective Date").
WHEREAS, executive is currently employed by the Company in a senior
executive capacity pursuant to an employment agreement between the Company and
Executive dated April 19, 1999 and amended on August 30, 2001 and December 28,
2001 (the "Prior Agreement");
WHEREAS, the Company desires to continue to employ Executive and Executive
desires to continue to be employed by the Company;
WHEREAS, as an additional inducement to Executive to enter into this
Agreement, the Company shall, as of the Effective Date 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 A (the "Stock Grant");
WHEREAS, the Company and Executive desire to terminate the Prior Agreement
and supersede the Prior Agreement with this Agreement; 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, the Prior Agreement (which does not include the Wyndham
International, Inc. Non-Qualified Stock Option Agreement between Executive and
Company dated April 19, 1999, which remains in full force and effect) shall be
terminated and superseded by this Agreement which provides as follows:
1. Employment. The term of Executive's employment shall extend from the
Effective Date until the third anniversary of the Effective Date; provided,
however, that the term of Executive's employment 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 Executive's employment, the term of
Executive's employment shall continue in effect until the later of the end of
the initial term described above or the end of the eighteenth (18th) month
following the month in which the Change in Control occurred. The term of
Executive's employment 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 Executive Vice President, Sales and Marketing of the Company, shall have
supervision and control over and responsibility for the day-to-day business and
affairs of those functions and
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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") and the Chief Executive Officer of the Company (the "CEO") or the
Chief Operating Officer of the Company (the "COO"), 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. During the Period of Employment, Executive's initial
annual base salary ("Base Salary") shall be $300,000. 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 (or earlier as provided in Paragraph 7 or 8 of this
Agreement), 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 the
Company for earnings before interest, taxes, depreciation, and amortization is
achieved. 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. Incentive
Compensation shall be paid to Executive no later than the date incentive
compensation is paid by the Company to similarly situated executives.
"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
2
a fraction, the numerator of which 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 will also 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; provided, however, that Executive
shall be entitled to the number of paid vacation days set forth in Paragraph
3(f). 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. 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
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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. During the Period of Employment, 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.
Executive shall also be entitled to all paid holidays given by the Company to
its executives.
(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.
4. Unauthorized Disclosure.
(a) Confidential Information. The Company (and, if applicable, its
predecessors) shall provide Executive with, and Executive shall become
acquainted with, information related to the business affairs, trade secrets, and
other matters of the Company and its subsidiaries which is of a proprietary or
confidential nature, including but not limited to the operations, business
opportunities, price and cost information, finance, customer information,
business plans, various sales techniques, manuals, letters, notebooks,
procedures, reports, products, processes, services, and other confidential
information and knowledge (collectively the "Confidential Information")
concerning the business of the Company, its predecessors and their respective
subsidiaries. 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), governmental agency, or similar tribunal, 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 or any of its
subsidiaries. At such time as Executive shall cease to be employed by the
Company, or if the Company terminates the Agreement pursuant to Paragraph 18,
Executive 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.
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(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.
(c) Definition of Subsidiary. For purposes of this Paragraph 4 and for
purposes of Paragraph 5 (Covenant Not to Compete) below, "subsidiary" of the
Company means any corporation, partnership, joint venture, limited liability
company or other entity of which (i) at least a majority of the securities or
other interests having by their terms voting power to elect a majority of the
board of directors or others performing similar functions for such entity is
directly or indirectly beneficially owned by the Company (either alone or
through or together with one or more of its subsidiaries), or (ii) the Company
or any subsidiary of the Company is a general partner or manager.
5. Covenant Not to Compete. In consideration for the Stock Grant, the
Company's promise to provide Confidential Information as set forth in Paragraph
4 above, the payment specified in Paragraph 18, if necessary, and for
Executive's employment by the Company under the terms provided in this
Agreement, 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, 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
or any of its subsidiaries 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 and its subsidiaries 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
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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 or consumer with whom the Company or any of its
subsidiaries 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 or any of its subsidiaries in any of the areas or
territories in which the Company or any of its subsidiaries conducts operations
if such action has the intent or effect of interfering with the Company's or any
of its subsidiaries' 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 employee of the Company or any of its
subsidiaries (including, without limitation, any current employee of the Company
or any of its subsidiaries 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
employee of the Company or any of its subsidiaries 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 of activity, duration and
geographical area 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 scope of activity
or area covered thereby, the parties agree that the court making such
determination shall have the power to reduce the duration and/or area and/or
scope of activity 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).
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(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 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.
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(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;
(B) any removal, during the Period of Employment, from Executive of his title of
Executive Vice President, Sales and Marketing; (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; or (F) the requirement that Executive report to a
person who is below the level of COO. "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) 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, any
termination by the Company pursuant to Paragraph 18, 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), by the Company for Cause under Subparagraph 6(c), or if the Agreement is
terminated by the Company pursuant to Paragraph 18, 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.
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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(a). 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. Such payments, in the aggregate, shall fully discharge the
Company's obligations under this Paragraph 7(a). In addition to the foregoing,
any payments or other rights to which Executive's spouse, beneficiaries, or
estate may be entitled under any employee benefit plan or arrangement shall be
governed by the terms of such plan or arrangement.
(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
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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, 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.
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(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.
(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 during the Period of Employment. 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. If such termination does not occur
within eighteen (18) months after the occurrence of the first event constituting
a Change of Control, the provisions of Subparagraph 8(a) shall terminate and be
of no further force or effect.
(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 equal bi-weekly
installments, in arrears, over twenty-four (24) months; provided, however,
that in the event Executive commences any employment with an employer other
than the Company during such twenty-four (24) month period, the Company
shall not be entitled to any right of set-off against the Severance Amount
for any cash compensation received by the Executive from the new employer
during such period.
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(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) Executive shall also be entitled to any such 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 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 sentence, will be equal to
the Severance Amount. In addition, if pursuant to the immediately preceding
sentence a full gross up payment is not made to Executive for the entire
amount of Excise Tax (and any federal, state and local income taxes and
employment taxes (together with penalties and interest) and Excise Tax on
the payment provided for in the immediately preceding sentence) incurred by
Executive in connection with the first event constituting a Change in
Control, then the Company will pay to Executive an additional amount that,
after taking into account the amount payable pursuant to the immediately
preceding sentence, will completely gross up the Executive for the entire
amount of Excise Tax (and for any federal, state and local income taxes and
employment taxes (together with penalties and interest) and Excise Tax on
the payments provided for by this Subparagraph 8(b)(i)); provided, however,
that any payment made pursuant to this sentence will not exceed an amount
equal to twice the Executive's Base Salary or Adjusted Base Salary, as
applicable, in effect immediately prior to the date of the Change in
Control. The payments made pursuant to this Subparagraph 8(b)(i) are
collectively referred to herein as the "Gross Up Payments". It is the
intent that the Gross Up Payments provided for by this Subparagraph 8(b)(i)
place Executive in the same position Executive would have been in had no
Excise Tax been imposed, subject to the limitation on the Gross Up Payment
provided for in the second sentence of this Subparagraph 8(b)(i) by the
proviso of such sentence.
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(ii) Applicable Rates. For purposes of determining the amount of the
Gross Up Payments, Executive will be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation in the calendar year
in which the Gross Up Payments are to be made and state and local income
taxes at the highest marginal rates of taxation in the state and locality
of Executive's primary residence for the calendar year in which the Gross
Up Payments are to be made, net of the maximum reduction in federal income
taxes that could be obtained from deduction of such state and local taxes.
(iii) Time for Payment. The Company will pay the estimated amount of
the Gross Up Payments in cash to Executive at such time or times when the
Excise Tax is due. Executive and the Company and their respective tax
advisors agree to confer and reasonably cooperate in the determination of
the actual amount of the Gross Up Payments. Without limiting the foregoing,
Executive shall, if requested by the Company, cooperate in a valuation of
Executive's obligations under paragraph 5 of this Agreement by a valuation
firm selected and paid for by the Company. Further, Executive and the
Company agree to make such adjustments to the estimated amount of the Gross
Up Payments as may be necessary to equal the actual amount of the Gross Up
Payments, 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 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
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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. as in effect on
the date of this Agreement.
"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:
if to the Executive:
At his home address as shown
in the Company's personnel records;
if to the Company:
Wyndham International, Inc.
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Attention: Senior Vice President of Human Resources
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 to this Agreement. 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. Mediation and/or Arbitration; Other Disputes.
(a) General Procedures. In the event of any dispute or controversy arising
under or in connection with the terms of this Agreement, the parties shall first
promptly try in good faith to settle such dispute or controversy by mediation
under the Commercial Mediation Rules of the American Arbitration Association
("AAA") before resorting to arbitration, provided, however, that if the dispute
or controversy concerns whether Executive is entitled to a payment under
subparagraph 8(a) or 8(b) or the amount of any payment to which the Executive is
entitled under subparagraph 8(a) or 8(b), the expedited procedures in
subparagraph 13(b) will apply. In the event such dispute or controversy remains
unresolved in whole or in part for a period of thirty (30) days after it is
submitted to mediation, the parties will settle any remaining dispute or
controversy exclusively by arbitration in Dallas, Texas in accordance with the
Commercial Arbitration Rules of the AAA then in effect. The parties hereto agree
that any dispute relating to the terms of this Agreement or the performance by
the parties of their respective obligations under the terms of this Agreement
shall not in any event be subject to the AAA's National Rules for the Resolution
of Employment Disputes. Judgment may be entered on the arbitrator's award in any
court having jurisdiction. With respect to a dispute or other controversy
arising under or in connection with the terms of this Agreement after a Change
in Control, all administration fees
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and arbitration fees shall be paid solely by the Company. Each party agrees to
pay its own legal fees and expenses incurred in connection with mediation and/or
arbitration.
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. Should a
dispute occur concerning Executive's mental or physical capacity as described in
subparagraphs 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 from the
date due until paid at a rate equal to the lesser of eighteen percent (18%) per
annum or the maximum lawful rate.
(b) Expedited Procedures. The following expedited procedures apply in the
event of any dispute or controversy concerning whether Executive is entitled to
a payment under subparagraph 8(a) or 8(b) or the amount of any payment to which
Executive is entitled under subparagraph 8(a) or 8(b), and are intended to
supplement the general procedures detailed above. The parties shall first
promptly try in good faith to settle such dispute or controversy by expedited
mediation under the Commercial Mediation Rules of the AAA, as modified by this
Agreement, before resorting to arbitration. In the event that such dispute or
controversy remains unresolved in whole or in part for a period of fifteen (15)
days after either party files a request for expedited mediation with the AAA,
the parties will settle any remaining dispute or controversy exclusively by
expedited arbitration in Dallas, Texas in accordance with the Expedited
Procedures of the Commercial Arbitration Rules of the AAA then in effect, as
modified by this Agreement. The parties agree that the arbitration hearing will
be held sixty (60) days after the filing of a demand for expedited arbitration.
The parties further agree that the following deadlines shall apply: (1) a party
has fifteen (15) days following the conclusion of the mediation period to file
an arbitration demand; (2) the opposing party then has seven (7) days to file an
answering statement; (3) thereafter, the parties have thirty-five (35) days to
conduct discovery, and (4) the parties have seven (7) days following the close
of discovery to exchange copies of all exhibits that they intend to submit at
the hearing. During the first five (5) days of the discovery period, and prior
to either party starting discovery, the parties must agree upon the type of
discovery that will be conducted and upon a discovery schedule. Any dispute
regarding the type of discovery or the discovery schedule must be resolved by
the arbitrator during a discovery conference conducted in person or on the
telephone within the first five (5) days of the discovery period. The parties
agree that the arbitrator shall have fifteen (15) days after the arbitration
hearing to issue an award. The award shall be written and reasoned, if requested
by one of the parties.
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.
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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. Assumption in Bankruptcy. The Company agrees that in the event that a
chapter 11 bankruptcy petition is filed by or against the Company, the Company
will, at its sole expense, promptly file a motion seeking Bankruptcy Court
approval of the Company's assumption of this Agreement as an executory contract
pursuant to Bankruptcy Code section 365. The Company further agrees to use
commercially reasonable efforts to seek approval of such motion. Executive
agrees to cooperate with the Company's efforts in prosecuting such motion, and
agrees to provide such information and assistance as may be necessary for the
Company to obtain the approval thereof; provided, however, that Executive's
obligation to provide such assistance and cooperation shall not require
Executive to pay any of the costs, including legal fees or expenses, incurred by
the Company in seeking approval of such motion.
18. Existing Awards. The following awards (stock options and restricted units)
shall remain in full force and effect and shall be governed by the terms set
forth therein:
Options or Restricted
Grant Date Grant Type Units Awarded Option Price
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8/17/1998 Non-Qualified 2,058 $ 7.55
8/17/1998 Non-Qualified 8,229 $ 7.55
4/19/1999 Non-Qualified 150,000 $ 5.00
4/12/2001 Restricted Units 150,000 $ 0.00
12/18/2001 Restricted Units 127,500 $ 0.00
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date and year first above written.
WYNDHAM INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Its: Executive V.P & General Counsel
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