EXHIBIT 10.17
November 3, 1999
Xx. Xxxxxxx Xxxxxxxx
c/o Grand Bay Hotels & Resorts
00000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Dear Xxxxxxx:
This letter agreement (the "Agreement") confirms the agreement that we
have reached regarding the termination of your employment with Wyndham
International, Inc. ("WII") and its respective related and affiliated entities
(collectively, the "Companies").
The purpose of this Agreement is to establish mutually agreeable
arrangements for ending your employment and structuring your continuing
relationship with the Companies following your termination. This Agreement does
not constitute and should not be construed as an admission by the Companies that
they have in any way violated any legal obligation that they owe to you or to
any other person or as an admission by you that you have in any way violated any
legal obligation that you owe to the Companies or to any other person. To the
contrary, the parties' willingness to enter into this Agreement demonstrates
that they are continuing to deal with each other fairly and in good faith.
With those understandings and in exchange for the promises set forth
below, you and the Companies agree as follows:
1. Termination
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You hereby acknowledge that your employment with WII has been terminated
by WII effective as of October 22, 1999 (the "Date of Termination"). You and WII
acknowledge that your termination from employment is a Termination Without Cause
as defined by Subparagraph 6(e) of the June 19, 1998 Executive Employment
Agreement between you and WII (the "Employment Agreement") within 12 months of a
Change in Control as defined by Paragraph 8 of the Employment Agreement. Subject
to earlier termination pursuant to Paragraph 6 of the Employment Agreement, WII
will continue your salary and benefits through the Date of Termination pursuant
to Section 7(d) of the Employment Agreement. On the date of Termination, WII
will pay you One Hundred Seventy-four Thousand, Two
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November 3, 1999
Page 2
Hundred and Sixty-nine Dollars ($174,269), less applicable withholding. You
acknowledge and agree that this amount accurately represents the value of your
accrued vacation and accrued bonus as of the Date of Termination.
2. Compensation and Benefits.
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(a) Effect of Termination on Equity Grants. In accordance with
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Subparagraph 8(b)(ii) of the Employment Agreement, upon the effective date of
the Change in Control, all stock options and other stock-based awards granted to
you by the Companies immediately accelerated and became exercisable or
non-forfeitable. The period of time in which you may exercise your stock options
after the Date of Termination shall be governed by the terms and provisions of
the respective stock option agreements.
(b) Severance. In recognition of your service to WII, and in full
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satisfaction of any and all claims you may have against the Companies, as more
fully set forth in Section 5 below, the Companies will pay you Five Hundred
Forty-Eight Thousand, Nine Hundred and Eighty-one Dollars ($548,981) (the
"Severance Payment") pursuant to Paragraph 8 of the Employment Agreement. The
Severance Payment shall be reduced by applicable withholding and shall be
payable by lump sum to you within five (5) business days following the later of
the Date of Termination or the Effective Date (as defined in Section 14(d)
below).
(c) Benefit Continuation. You may continue to participate in WII's
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group health and dental plans in which, and to the same extent as, you are
currently participating for up to one (1) year from the Date of Termination,
with the cost of the regular premium for such benefits shared in the same
relative proportion by you and WII as in effect for senior executives of WII on
the Date of Termination; provided that nothing in this Section 3(c) shall be
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construed to affect your or your dependents' rights, after your rights to cost
sharing under this Section 3(c) end, to receive continuation coverage to the
extent authorized by and consistent with 29 U.S.C. (S) 1161 et seq. (commonly
known as "COBRA") and applicable group health and dental plan terms, entirely at
your or their own cost.
(d) Outplacement. In accordance with Subparagraph 7(d)(ii) of the
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Employment Agreement, WII shall, for a period of six months commencing upon
written notice by you when you so elect no later than one (1) year after the
Date of Termination, and ending six (6) months after said notice or through the
date you secure new employment, if earlier, pay for the reasonable costs of
executive outplacement services selected by you for use in connection with
obtaining alternate employment.
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November 3, 1999
Page 3
(e) Office. WII shall continue to make your current office
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available to you for your use until the space is sublet or otherwise transferred
by WII. WII will provide you with 30 days advance notice of such sublet or other
transfer. You will be responsible for the cost of any supplies or support you
may need.
(f) Boulders Membership. WII will continue to provide you with
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membership at the Boulders so long as WII owns the Boulders; provided, however,
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that such membership may be terminated at any time by WII if WII, through its
Chairman or President, determines in its sole discretion that you are engaging
or have engaged in activities in violation of any obligations you may have under
paragraphs 4, 5, or 15 of the Employment Agreement, Section 7 of this Agreement,
or that, had you continued to be employed by WII, would have constituted grounds
for termination of said employment under paragraph 6(c) of the Employment
Agreement.
(g) You will be permitted at such time during the Consulting Period
(as that term is defined and used in Section 3 below) as you and the Company
will reasonably agree, to stay one week at any Company owned Golden Door Spa at
the Companies' expense.
(h) Other Benefits. Except as expressly provided above, your
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eligibility to participate in any of the Companies' respective employee benefit
plans and programs ceases on or after the Date of Termination in accordance with
the terms and conditions of each of those benefit plans and programs and your
rights to benefits under any of the employee benefit plans and programs, if any,
are governed by the terms and conditions of each of those employee benefit plans
and programs.
(i) Reservation of WII's Rights. If between now and October 1,
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1999, you engage in conduct that results in a Termination for Cause pursuant to
Subparagraph 6(c) of the Employment Agreement, WII is relieved of its
obligations under Sections 3(b)-(g) of this Agreement.
3. Consulting Services
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(a) You hereby agree to provide non-exclusive consulting services
to the Companies for a period of one (1) year (i.e., from October 1, 1999
through September 30, 2000) (the "Initial Consulting Period"), which period WII
and you may agree to extend for an additional year upon mutually agreeable terms
negotiated in good faith (the "Extended Consulting Period") (the Initial
Consulting Period and Extended Consulting Period, if any, hereafter collectively
referred to as the "Consulting Period").
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November 3, 1999
Page 4
(b) In your capacity as a consultant to the Companies, you agree
upon request from one or more of the Companies to assist with respect to
transitional matters that may arise in connection with your termination, to
respond to requests for information concerning business matters with which you
became familiar while employed, and to provide assistance with respect to (i)
Manzanillo owner relations, (ii) the Laguna development, and (iii) such other
projects mutually agreed upon by you and the Companies (collectively, the
"Consulting Services"). You agree to make yourself available at reasonable times
and places and with reasonable notice for one day per week on average to provide
Consulting Services.
(c) It is intended and agreed by and between the parties that while
providing Consulting Services, you are, and shall at all times be and remain, an
independent contractor. You understand and agree that during the Consulting
Period, you are not an employee of any of the Companies and shall not be treated
as an employee for any purpose. You understand and agree that as an independent
contractor, you are required to pay and are solely liable for, all applicable
taxes, including, without limitation, federal income tax and state income tax on
remuneration you receive in exchange for the Consulting Services and you may be
required to pay quarterly estimated income taxes. Nothing in this Agreement or
otherwise shall be construed as identifying you as an employee, agent or legal
representative of any of the Companies during the Consulting Period for any
purpose whatsoever. You will not be authorized to transact business, incur
obligations, sell goods, receive payments, solicit orders or assign or create
any obligation of any kind, express or implied, on behalf of any of the
Companies, or to bind in any way whatsoever, or to make any promise, warranty or
representation on behalf of any of the Companies with respect to any matter,
except as expressly authorized in writing by the Companies. You shall not use
any of the Companies' trade names, trademarks, service names or servicemarks
without the prior written approval of the Companies.
During the Consulting Period, you shall be free to pursue other business
opportunities or employment (except to the extent that such other business
opportunities or employment might violate Paragraph 5 (as said Paragraph 5 is
amended in Section 5 below) of the Employment Agreement); provided, however,
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that you hereby acknowledge your continuing obligations to the Companies under
Paragraph 4 of the Employment Agreement, and provided further, however, that you
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shall remain available to provide and shall provide, Consulting Services to the
Companies pursuant to Section 3(b) of this Agreement.
(d) The Companies shall pay you a fee at the rate of One Hundred
Thousand Dollars ($100,000) per year during the Consulting Period, payable
ratably in monthly installments in arrears. You also shall be paid a success
bonus of Two Hundred Fifty
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November 3, 1999
Page 5
Thousand Dollars ($250,000) if within two (2) years following the end of the
Consulting Period, the financing arrangements for the Laguna project are
completed with parties with whom you worked in connection with providing
Consulting Services (including, without implication of limitation, Farallon
Capital Partners and Capital Pacific Holdings, Inc.) and a management contract
between Laguna and WII is executed. During the Consulting Period you may stay at
WII-managed hotels at the then applicable employee rate and shall be entitled to
stay one week per year at any WII-owned Golden Door Spa, subject to
availability. The Companies shall promptly reimburse you for all reasonable
disbursements incurred by you in connection with providing Consulting Services,
subject to approval and documentation in accordance with policies for executive
vice presidents of WII as may be in effect from time to time.
4. Release of Claims.
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(a) Release by Xx. Xxxxxxxx. You voluntarily and irrevocably
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release and discharge the Companies, their related or affiliated entities, and
their respective predecessors, successors, and assigns, (including but not
limited to Patriot American Hospitality, Inc. ("PAHI")), and the current and
former officers, directors, shareholders, employees, and agents of each of the
foregoing (any and all of which are referred to as "Releasees") generally from
all charges, complaints, claims, promises, agreements, causes of action,
damages, and debts that relate in any manner to your employment with or services
for the Companies, known or unknown ("Claims"), which you have, claim to have,
ever had, or ever claimed to have had against any of the Releasees through the
date on which you execute this Agreement. This general release of Claims
includes, without implication of limitation, all Claims for or related to: the
Employment Agreement; the compensation provided to you by the Companies; your
termination as described in Section 1; wrongful or constructive discharge;
breach of contract; breach of any implied covenant of good faith and fair
dealing; tortious interference with advantageous relations; intentional or
negligent misrepresentation, fraud or deceit; infliction of emotional distress,
and unlawful retaliation or discrimination under the common law or any federal,
state or local statute or law (including, without implication of limitation, the
Employee Retirement Income Security Act, Title VII of the Civil Rights Act of
1964, the American with Disabilities Act, the Age Discrimination in Employment
Act, Ariz. Stat. Xxx. (S)41-1461, et seq., and Ariz. Stat. Xxx. (S)23-1501, et
seq.). You also waive any Claim for reinstatement, severance, incentive or
retention pay (except as expressly provided in this Agreement), attorney's fees,
or costs, relating to the above waived claims.
You agree that you will not hereafter pursue any Claim against any
Releasee by filing a lawsuit in any local, state or federal court for or on
account of anything which has occurred up
Xx. Xxxxxxx Xxxxxxxx
November 3, 1999
Page 6
to the present time as a result of your employment, and you shall not seek
reinstatement with, or damages of any nature, severance, incentive or retention
pay, attorney's fees, or costs from the Companies or any of the other Releasees.
(b) Release by the Companies. The Companies, on behalf of
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themselves and their respective predecessors, successors, assigns, directors
(but only in their capacities as directors of the Companies) and officers (but
only in their capacities as officers of the Companies) voluntarily and
irrevocably release and discharge you and your successors, assigns, heirs and
survivors from any and all charges, complaints, claims, promises, agreements,
causes of action, damages and debts (including attorney's fees and costs
actually incurred) which any of them have, claim to have, ever had or ever
claimed to have had against you through the date hereof, that are known to the
Companies or that presently are not actually known to senior management of the
Companies but that directly or indirectly arise out of, relate to or concern
good faith acts or omissions by you during the course of your employment
undertaken or not undertaken in the reasonable belief that such acts or
omissions were in or not opposed to the best interests of the Companies ("WII
Claims").
The Companies further represent that they do not have any knowledge
at this time of any acts or omissions by you that would give rise claims not
otherwise released in the previous paragraph.
5. Employment Agreement
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This Agreement supersedes all provisions of the Employment Agreement other
than Paragraphs 4 (Unauthorized Disclosure), 5 (Covenant Not to Compete), 6
(Termination), 7 (Compensation Upon Termination or During Disability), 8
(Parachute Payment), 13 (Arbitration; Other Disputes) and 15 (Litigation and
Regulatory Cooperation) thereof, which provisions are incorporated herein by
reference and shall continue to bind you in accordance with their respective
terms.
6. Return of Property
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All documents, records, material and all copies of any of the foregoing
pertaining to Confidential Information (as defined in Paragraph 4 of the
Employment Agreement), and all software, equipment, and other supplies, whether
or not pertaining to Confidential Information, that have come into your
possession or been produced by you in connection with your employment
("Property") have been and remain the sole property of the Companies. You shall
return all Property to the Companies on or before the Date of Termination. In no
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November 3, 1999
Page 7
event should this provision be construed to require you to return to the Company
any document or other materials concerning your remuneration and benefits during
your employment with the Companies.
7. Nondisparagement
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You agree not to take any action or make any statement, written or oral,
which disparages or criticizes the Companies or their respective officers,
directors, agents, or management and business practices, or which reasonably
could be expected to and does in fact significantly disrupt or impair the
Companies' normal operations. The Companies, on behalf of themselves, agree (a)
not to take any action or make any statement, written or oral, which disparages
or criticizes you or your management and business practices, and (b) to instruct
their respective directors and officers not to take any action or make any
statement, written or oral, which disparages or criticizes you or your
management and business practices. The provisions of this Section 7 shall not
apply to any truthful statement required by binding legal process to be made by
you or the Companies, as the case may be, in any legal proceeding or
governmental or regulatory investigation.
8. Additional Representations, Warranties and Covenants.
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(a) As a material inducement to the Companies to enter into this
Agreement, you represent, warrant and covenant as follows:
(i) You have not assigned to any third party any Claim
released by this Agreement.
(ii) You have not heretofore filed with any agency or court
any Claim released by this Agreement.
(b) As a material inducement to you to enter into this Agreement,
the Companies represent, warrant and covenant as follows:
(i) The Companies have not assigned to any third party any
WII Claims released by this Agreement; and
(ii) The Companies have not heretofore filed with any agency
or court any WII Claims released by this Agreement.
Xx. Xxxxxxx Xxxxxxxx
November 3, 1999
Page 8
9. Further Assurances
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Upon the terms and subject to the conditions herein provided, each of the
parties hereto agrees to use its reasonable efforts to take, or cause to be
taken, all action and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement, subject, in the case
of the Companies, to the provisions of any credit agreement or financing
agreement or other contract or agreement by which any of the Companies may be
bound.
10. Exclusivity
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This Agreement sets forth all the consideration to which you are entitled
from the Companies by reason of your termination and your duties for the
Companies while employed, and you agree that you shall not be entitled to or
eligible for any payments or benefits under any other Company severance, bonus,
retention or incentive policy, arrangement or plan.
11. Tax Matters
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All payments and other consideration provided to you pursuant to this
Agreement shall be subject to any deductions, withholding or tax reporting that
the Companies reasonably determine to be required for tax purposes.
12. Arbitration of Disputes
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Any controversy or claim arising out of or relating to this Agreement or
the breach thereof shall, to the fullest extent permitted by law, be settled by
arbitration in accordance with Paragraph 13 of the Employment Agreement. This
Section 12 shall be specifically enforceable. Notwithstanding the foregoing,
this Section 12 shall not preclude either party from pursuing a court action for
the sole purpose of obtaining a temporary restraining order or a preliminary
injunction in circumstances in which such relief is appropriate; provided that
any other relief shall be pursued through an arbitration proceeding pursuant to
this Section 12.
13. Consent to Jurisdiction
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To the extent that any court action is permitted consistent with or to
enforce Section l2 of this Agreement, the parties hereby consent to the
jurisdiction of the state and federal courts in or for Phoenix, Arizona.
Accordingly, with respect to any such court action, you and the Companies (a)
submit to the personal jurisdiction of such courts; (b) consent to service of
Xx. Xxxxxxx Xxxxxxxx
November 3, 1999
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process; and (c) waive any other requirement (whether imposed by statute, rule
of court, or otherwise) with respect to personal jurisdiction or service of
process.
14. Notices. Acknowledgments and Other Terms
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(a) You are advised to consult with an attorney before signing this
Agreement.
(b) You acknowledge and agree that the Companies' promises in this
Agreement constitute consideration in addition to anything of value to which you
are otherwise entitled by reason of the termination of your employment.
(c) By signing this Agreement, you acknowledge that you are doing
so voluntarily and knowingly, fully intending to be bound by this Agreement. You
also acknowledge that you are not relying on any representations by us or any
other representative of the Companies concerning the meaning of any aspect of
this Agreement. You understand that this Agreement shall not in any way be
construed as an admission by the Companies of any liability or any act of
wrongdoing whatsoever by the Companies against you and that the Companies
specifically disclaim any liability or wrongdoing whatsoever against you on the
part of themselves and their respective officers, directors, shareholders,
employees and agents. You understand that if you do not enter into this
Agreement and bring any claims against the Companies, the Companies will dispute
the merits of those claims and contend that they acted lawfully and for good
business reasons with respect to you.
(d) You acknowledge that you have been given the opportunity, if
you so desired, to consider this Agreement for twenty-one (21) days before
executing it. If not signed by you and returned to the General Counsel of WII so
that it is received by close of business on the twenty-second (22nd) day after
your receipt of the Agreement, this Agreement will not be valid. In addition, if
you breach any of the conditions of the Agreement within the twenty-one (21) day
period, the offer of this Agreement will be withdrawn and your execution of the
Agreement will not be valid. In the event that you execute and return this
Agreement within twenty-one (21) days or less of the date of its delivery to
you, you acknowledge that such decision was entirely voluntary and that you had
the opportunity to consider this letter agreement for the entire twenty-one (21)
day period. The Companies acknowledge that for a period of seven (7) days from
the date of the execution of this Agreement, you shall retain the right to
revoke this Agreement by written notice delivered to the General Counsel of WII
before the end of such period, and that this Agreement shall not become
effective or enforceable until the expiration of such revocation period (the
"Effective Date").
Xx. Xxxxxxx Xxxxxxxx
November 3, 1999
Page 10
(e) In the event of any dispute, this Agreement will be construed
as a whole, will be interpreted in accordance with its fair meaning, and will
not be construed strictly for or against either you or the Companies.
(f) The law of the State of Arizona will govern any dispute about
this Agreement, including any interpretation or enforcement of this Agreement.
(g) In the event that any provision or portion of a provision of
this Agreement shall be determined to be illegal, invalid or unenforceable, the
remainder of this Agreement shall be enforced to the fullest extent possible and
the illegal, invalid or unenforceable provision or portion of a provision will
be amended by a court of competent jurisdiction to reflect the parties' intent
if possible. If such amendment is not possible, the illegal, invalid or
unenforceable provision or portion of a provision will be severed from the
remainder of this Agreement and the remainder of this Agreement shall be
enforced to the fullest extent possible as if such illegal, invalid or
unenforceable provision or portion of a provision was not included.
(h) This Agreement may be modified only by a written agreement
signed by you and authorized representatives of the Companies, which will
include the General Counsel of WII and her successor in that position and such
other representatives as the General Counsel may identify to you in writing.
(i) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements between the parties with respect to any related subject matter,
except as provided in Section 5 hereof.
(j) This Agreement shall be binding upon each of the parties and
upon their respective heirs, administrators, representatives, executors,
successors and assigns, and shall inure to the benefit of each party and to
their heirs, administrators, representatives, executors, successors, and
assigns.
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November 3, 1999
Page 11
If you agree to these terms, please sign and date below and return this
Agreement to the General Counsel of WII.
Sincerely,
WYNDHAM INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Chief Executive Officer
Accepted and agreed to:
/s/ Xxxxxxx Xxxxxxxx Nov. 5, 1999
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Xxxxxxx Xxxxxxxx Date
