Exhibit 10.15
February 23, 2001
Xx. Xxxxx X. Xxxxxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Dear Xxxxx:
This letter agreement (this "Agreement") confirms the agreement that we
have reached regarding the termination of your employment with Wyndham
International, Inc. ("WII") and its respective related and affiliated entities
(collectively, the "Companies").
The purpose of this Agreement is to establish a mutually agreeable
arrangement for ending your employment. This Agreement does not constitute and
should not be construed as an admission by the Companies that they have in any
way violated any legal obligation that they owe to you or to any other person or
as an admission by you that you have in any way violated any legal obligation
that you owe to the Companies or to any other person. To the contrary, the
parties' willingness to enter into this Agreement demonstrates that they are
continuing to deal with each other fairly and in good faith.
With those understandings and in exchange for the promises set forth below,
you and the Companies agree as follows:
1. Termination. You and WII hereby acknowledge that your position as
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Executive Vice President and General Counsel of WII terminated effective
December 31, 2000. Any other offices, board of director seats or affiliations
that you held with any of the Companies also terminated as of December 31,
2000. For purposes of determining your compensation and other benefits payable
to you pursuant to the Amended and Restated Executive Employment Agreement dated
as of April 19, 1999, between you and WII (the "Employment Agreement"), the
date of termination of your employment with WII shall be deemed to be
December 31, 2000 (the "Date of Termination"). You and WII agree that your
termination from employment is a termination by the Company without "Cause" as
defined by Subparagraph 7(c) of the Employment Agreement.
2. Compensation and Benefits.
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(a) Accrued and Unpaid Adjusted Base Salary. You acknowledge that any
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accrued and unpaid Adjusted Base Salary (as defined in the Employment
Agreement) through the Date of Termination was paid to you on or before
January 15, 2001.
(b) Incentive Compensation. You and WII agree that your incentive
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compensation for 2000 shall be $350,000, which will be paid to you on or
before March 15, 2001.
Xx. Xxxxx X. Xxxxxxxx
February 23, 2001
Page 2
(c) Severance. WII will pay you a severance amount (the "Severance
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Amount") of $1,126,666.00, subject to your continuing strict adherence to
the provisions of Paragraphs 4 and 5 of the Employment Agreement. You
acknowledge and agree that this Severance Payment fully and completely
satisfies the Companies' obligation to pay your severance under Paragraph
(7)(d)(i) of the Employment Agreement. The Severance Payment shall be
reduced by applicable withholdings and shall be payable in 24 equal monthly
installments on the last day of each month, commencing January 31, 2001;
provided, however, that WII shall be entitled to set-off against the
Severance Payment the consulting retainer (the "Retainer") paid to you
pursuant to Section 3(d)(i) of this Agreement. In addition, in the event
that you commence any employment as an employee during the period from
December 31, 2000 through December 31, 2002, WII shall be entitled to set-
off against any remaining installments of the Severance Payment (x) 50% of
all cash compensation paid to you for such new employment during the period
from December 31, 2000 through December 31, 2001, and (y) 25% of all cash
compensation paid to you for such new employment during the period from
January 1, 2002 through December 31, 2002. It is expressly understood and
agreed that WII shall be entitled to such setoff even if such cash
compensation is also used as a setoff against the Retainer pursuant to
Section 3(d)(i) hereof. For clarification purposes and by way of
illustration only, if, for example, you received cash compensation of
$10,000 for new employment on February 15, 2001, WII would be entitled to
reduce your February 28, 2001 installment (or any subsequent installment)
of the Severance Payment by $5,000 (50% of $10,000) and would also be
entitled to reduce your February 28, 2001 installment (or any subsequent
installment) of the Retainer by $5,000. Consequently, if the February 28,
2001 payments were so reduced, the amount of the February 28, 2001
Severance Payment installment would be $41,944.42 and the amount of the
February 28, 2001 Retainer installment would be $43,150.53. As provided
above, however, WII is also entitled to set-off the Retainer against the
Severance Payment. Consequently, in this example, on February 28, 2001, WII
would owe you no Severance Payment installment and a Retainer installment
of $43,150.53. You shall provide WII prompt notice of any new employment
and cash compensation received during such periods. You acknowledge that
WII has paid you the first monthly Retainer installment provided for in
Section 3(d)(i) of this Agreement and, as permitted by this Section 2(c),
set-off such payment against the Severance Payment installment otherwise
due you on January 31, 2001.
(d) Effect of Termination on Equity Grants. Your rights with respect
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to any stock options and other stock-based awards granted to you by the
Companies shall survive the Date of Termination in accordance with 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 shall be governed by the provisions
therein relating to a termination of your employment without Cause.
Xx. Xxxxx X. Xxxxxxxx
February 23, 2001
Page 3
(e) Health/Dental/Vision Benefits. Until December 31, 2001, WII shall
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pay such health insurance premiums as may be necessary to allow you, your
spouse and other dependents to receive health insurance coverage
substantially similar to that provided to you by WII as of December 31,
2000. WII may satisfy its obligations hereunder by allowing you to
participate at WII's expense in WII's existing group health, dental and
vision plans. Nothing herein shall be construed to affect your or your
dependants' rights to receive continuation coverage under WII's group
health, dental and vision plans to the extent authorized by and consistent
with 29 U.S.C. (S)1161 et seq. (commonly known as "COBRA") and applicable
group health, dental and vision plan terms.
(f) Office Space and Assistant. Until April 30, 2001, WII at its
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expense will provide you with an office and all reasonable occupancy
expenses associated therewith, a parking space, related telephone and
telefax facilities, and an assistant at WII's headquarters.
(g) Tax Preparation. Until December 31, 2005, WII shall provide
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reasonable assistance and support to you or your estate as you or your
estate shall reasonably require with the preparation and filing of tax
returns, statements and forms insofar as such returns, statements or forms
relate to your employment or other association with the Companies or any of
their respective predecessors or affiliates. At WII's election, such
assistance and support shall be provided by either WII tax personnel or
certified public accountants selected and compensated by WII.
(h) Complimentary Room Benefits. Until December 31, 2002, you will
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be entitled to the same complimentary room benefits as WII may provide
during such period to its Executive Vice Presidents.
(i) 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.
3. Consulting Services.
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(a) Engagement. Upon the terms and conditions set forth herein, WII
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hereby retains you to provide the consulting services described below (the
"Consulting Services") to the Companies for a period commencing on January
1, 2001 and ending on December 31, 2002 (the "Consulting Period"). Upon the
terms and conditions set forth herein, you agree, if requested by WII, to
provide such Consulting Services to the Companies during the Consulting
Period.
Xx. Xxxxx X. Xxxxxxxx
February 23, 2001
Page 4
(b) Consulting Services. In your capacity as a consultant to the
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Companies, you agree upon request from one or more of the Companies (i) to
assist with respect to transitional matters that may arise in connection
with your resignation, (ii) to respond to requests for assistance or
information concerning business matters with which you became familiar
while employed, and (iii) to provide litigation consulting services and, in
connection therewith, to cooperate fully with the Companies in (x) the
defense or prosecution of any claims or actions which already have been
brought or which may be brought in the future against or on behalf of the
Companies and (y) responding to, cooperating with, or contesting any
governmental audit, inspection, inquiry, proceeding or investigation, which
relate to events or occurrences that transpired during your employment with
any of the Companies. Your full cooperation in connection with such claims
or actions shall include, without implication of limitation: promptly
providing written notice to Xxxx Xxxxxxxx (or such other person as WII may
designate in writing to you) of your receipt of any subpoena, interview,
investigation, request for information, or other contact concerning events
or occurrences that transpired during your employment with any of the
Companies; being available to meet with counsel for any of the Companies to
prepare for discovery or trial; to testify truthfully as a witness when
reasonably requested and at reasonable times designated by the Companies;
to meet with counsel or other designated representatives of the Companies;
and to prepare responses to and to cooperate with any Company's processing
of governmental audits, inspections, inquiries, proceedings or
investigations.
(c) Hours of Service. The maximum number of hours for which you shall
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be obligated to provide Consulting Services during the Consulting Period
shall be 800 hours. WII will provide you with reasonable advance notice of
its request to use your Consulting Services and you agree to cooperate with
WII in good faith to schedule the use of your Consulting Services.
Notwithstanding the foregoing, without your consent, you will not be
required to provide (i) more than 300 hours of Consulting Services in the
aggregate during the period from January 1, 2001 through April 30, 2001, or
(ii) more than 25 hours of Consulting Services in any month during the
period from May 1, 2001 through December 31, 2002. If you and WII agree to
your providing additional hours of Consulting Services during any such
period, the required consulting hours for the remaining term of the
Consulting Period shall be reduced by the amount of such additional hours
that you so provide so as not to exceed the 800 hour maximum. You and WII
may mutually agree upon terms under which you will provide Consulting
Services in excess of the 800 hour total, but neither you nor WII will have
any obligation to so agree. If you are required to travel in connection
with providing Consulting Services and you are not otherwise actually
providing Consulting Services while travelling, (i) 50% of any such travel
time incurred during the period from January 1, 2000 through April 30, 2001
shall be included in determining your hours of providing Consulting
Services, and (ii) 100% of any such travel time incurred during the period
from May 1, 2001 through December 31, 2002 shall be included in determining
your hours of providing Consulting Services.
Xx. Xxxxx X. Xxxxxxxx
February 23, 2001
Page 5
(d) Compensation.
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(i) Retainer. In consideration of your availability to
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provide the Consulting Services during the Consulting Period, WII shall pay
you a retainer (the "Retainer") of $1,155,612.68, which shall be payable
in 24 equal monthly installments on the last day of each month, commencing
January 31, 2001. You acknowledge that you have received the first such
monthly installment of the Retainer in the amount of $48,150.53. In the
event that you commence any employment as an employee during the period
from December 31, 2000 through December 31, 2001, WII shall be entitled to
set-off against any remaining installments of the Retainer (x) 50% of all
cash compensation paid to you for such new employment during the period
from December 31, 2000 through December 31, 2001, and (y) 25% of all cash
compensation paid to you for such new employment during the period from
January 1, 2002 through December 31, 2002. You shall provide WII prompt
notice of any new employment and compensation received during such periods.
(ii) Consulting Fee. If and to the extent you are requested
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by the Companies to provide Consulting Services, WII will pay you $500 per
hour for such Consulting Services (the "Consulting Fee"), provided,
however, that $150 per hour from the Retainer shall be credited towards
such Consulting Fee. You shall submit invoices to WII no less often than
monthly (or such shorter period as the Company may request) providing
reasonable detail of your time and matters for which you have provided
Consulting Services and shall otherwise cooperate with WII's attorneys and
accountants in providing such additional details as they may reasonably
request. WII shall pay you any Consulting Fee owed promptly but in any
event within 30 days of the date of your invoice submission.
(e) Reimbursement of Expenses. WII will reimburse you promptly for
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all reasonable disbursements incurred by you in performing Consulting
Services. In connection therewith, you shall abide by, and be entitled to
reimbursement by WII for such expenses incurred under, the travel and
expense reimbursement policies applicable to Executive Vice Presidents of
WII.
(f) Independent Contractor. It is intended and agreed by and between
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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 the Retainer and the
Consulting Fee 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,
Xx. Xxxxx X. Xxxxxxxx
February 23, 2001
Page 6
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 of the
Employment Agreement); provided, however, that you shall remain available
to provide and shall provide, on reasonable notice, Consulting Services to
the Companies on the terms herein provided.
(g) Access to Information; Confidentiality. During the first four
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months of the Consulting Period, WII will provide you with voice mail, e-
mail and access to the Companies' computer network to the extent necessary
for you to perform the Consulting Services.
You acknowledge that in the course of your engagement as a consultant
to the Companies (and, if applicable, their predecessors), you may become
acquainted with the Companies' business affairs, information, trade
secrets, and other matters which are of a proprietary or confidential
nature, including but not limited to the Companies' and their predecessors'
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 Companies' and their
predecessors' business. You understand and acknowledge that such
Confidential Information is confidential, and you agree not to disclose
such Confidential Information to anyone outside the Companies except to the
extent that (i) you deem such disclosure or use reasonably necessary or
appropriate in connection with performing your Consulting Services to the
Companies; (ii) you are 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, you shall promptly
inform WII of such event, shall cooperate with the Companies 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 you; 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 you propose to
disclose or use such information. You further agree that you will not
during the Consulting Period and/or at any time thereafter use such
Confidential Information in competing, directly or indirectly, with the
Companies.
Xx. Xxxxx X. Xxxxxxxx
February 23, 2001
Page 7
Upon termination of the Consulting Period, you shall immediately turn over
to the Companies all Confidential Information, including papers, documents,
writings, electronically stored information, other property, and all copies
of them provided to or created by you during the course of your engagement
as a consultant to the Companies.
(h) Covenant Not to Compete. You agree that during the Consulting
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Period you will not perform as an employee of or an attorney for a
competitor of the Companies. You agree that the Companies' remedy against
you for money damages for a breach of your obligations of confidentiality
to the Companies would be inadequate, and you agree that an injunction
against you for any such threatened breach is an appropriate remedy.
You agree that during the Consulting Period you will not, directly or
indirectly, either for yourself 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
Companies from time to time (i) has an existing agreement or business
relationship; or (ii) has included as a prospect in its applicable
pipeline) or vendors of the Companies in any of the areas or territories in
which the Companies conduct operations if such action has the intent or
effect of interfering with the Companies' relationship with the vendor or
customer.
You agree that during the Consulting Period, you will not directly or
indirectly solicit or induce any present or future employee of the
Companies to accept employment with you or with any business, operation,
corporation, partnership, association, agency, or other person or entity
with which you may be associated, and you will not employ or cause any
business, operation, corporation, partnership, association, agency, or
other person or entity with which you may be associated to employ any
present or future employee of the Companies without providing WII with ten
(10) days' prior written notice of such proposed employment.
You agree that if you violate the provisions of this Section 3(h),
then in addition to all other rights and remedies available to the
Companies at law or in equity, the duration of this covenant shall
automatically be extended for the period of time from which you began such
violation until you permanently cease such violation.
(i) Indemnification; Insurance. Concurrently herewith, WII and you
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are executing an Indemnification Agreement (the "Consulting Indemnification
Agreement") pursuant to which upon the terms and conditions set forth
therein, WII agrees to indemnify you with respect to certain liabilities
and expenses that may arise by reason of your providing the Consulting
Services. During the Consulting Period, Wyndham shall use its best efforts
to include you as an additional named insured with respect to your
Consulting Services on its directors and officers liability insurance
coverage.
Xx. Xxxxx X. Xxxxxxxx
February 23, 2001
Page 8
4. Release of Claims. So long as the Companies recognize and honor the
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agreements made herein, you voluntarily and irrevocably release and discharge
the Companies, their related or affiliated entities, and their respective
predecessors, successors, and assigns, (including but not limited to Patriot
American Hospitality, Inc. ("PAHI")), and the current and former officers,
directors, shareholders, employees, and agents of each of the foregoing (any and
all of which are referred to as "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 Paragraph 1; wrongful or constructive discharge; breach of
contract; breach of any implied covenant of good faith and fair dealing;
tortious interference with advantageous relations; intentional or negligent
misrepresentation, fraud or deceit; infliction of emotional distress, and
unlawful retaliation or discrimination under the common law or any federal,
state or local statute or law (including, without implication of limitation, the
Employee Retirement Income Security Act, Title VII of the Civil Rights Act of
1964, the Americans with Disabilities Act, the Age Discrimination in Employment
Act, Tex. Lab. Code Sections 21.001, et seq., and Tex. Hum. Res. Code Sections
121.001, et seq.). You also waive any Claim for reinstatement, severance,
incentive or retention pay (except as expressly provided in this Agreement),
attorney's fees, or costs, relating to the above waived Claims. This paragraph 4
does not release any claim for non-performance or breach after the date hereof
of this Agreement.
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 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.
5. Employment Agreement. This Agreement supersedes all provisions of the
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Employment Agreement other than Paragraphs 4 (Unauthorized Disclosure), 5
(Covenant Not to Compete), and 13 (Arbitration; Other Disputes) thereof, which
provisions are incorporated herein by reference and shall continue to bind you
in accordance with their respective terms. This Agreement supersedes all
provisions of the letter agreements between you and WII dated March 30, 2000 and
July 31, 2000.
6. Return of Property. All documents, records, material and all copies of
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any of the foregoing pertaining to Confidential Information (as defined in
Paragraph 4(a) of the Employment Agreement), and all software, equipment, and
other supplies, whether or not pertaining to Confidential Information, that have
come into your possession or been produced by
Xx. Xxxxx X. Xxxxxxxx
February 23, 2001
Page 9
you in connection with your employment ("Property") have been and remain the
sole property of the Companies. You confirm that you have returned all Property
(other than your IBM Thinkpad 240, which you may retain) to the Companies,
except to the extent such Property is reasonably necessary for you to perform
your services as a consultant to the Companies. All Property (other than your
IBM Thinkpad 240) shall be returned to the Companies promptly upon termination
of the Consulting Period. In no event should this provision be construed to
require you to return to the Company any document or other materials
concerning your remuneration and benefits during your employment with the
Companies.
7. Nondisparagement. You agree not to take any action or make any
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statement, written or oral, which disparages or criticizes the Companies or
their respective officers, directors, agents, or management and business
practices, or which disrupts or impairs the Companies' normal operations. The
Companies, on behalf of themselves, agree (a) not to take any action or make any
statement, written or oral, which disparages or criticizes you or your
management and business practices, and (b) to instruct their respective
directors and officers not to take any action or make any statement, written or
oral, which disparages or criticizes you or your management and business
practices. The provisions of this Paragraph 7 shall not apply to any truthful
statement required to be made by you or the Companies, as the case may be, in
any legal proceeding or governmental or regulatory investigation.
You shall have the right to review and approve, which approval shall not be
unreasonably withheld, the content of any press release or other public
statement issued by the Companies concerning the termination of your employment,
and you shall have the right to review and comment on any filing made by WII
with the Securities and Exchange Commission concerning the termination of your
employment.
8. Additional Representations, Warranties and Covenants. As a material
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inducement to the Companies to enter into this Agreement, you represent, warrant
and covenant as follows:
(a) You have not assigned to any third party any Claim released by
this Agreement.
(b) You have not heretofore filed with any agency or court any Claim
released by this Agreement.
9. Further Assurances. Upon the terms and subject to the conditions
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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.
10. Exclusivity. This Agreement sets forth all the consideration to which
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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
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February 23, 2001
Page 10
benefits under any other Company severance, bonus, retention or incentive
policy, arrangement or plan.
11. Tax Matters. All payments and other consideration provided to you
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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. Any controversy or claim arising out of or
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relating to this Agreement or the breach hereof shall, to the fullest extent
permitted by law, be settled by arbitration in accordance with Paragraph 13 of
the Employment Agreement. This Paragraph 12 shall be specifically enforceable.
Notwithstanding the foregoing, this Paragraph 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 Paragraph 11.
13. Consent to Jurisdiction. To the extent that any court action is
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permitted consistent with or to enforce Paragraph 12 of this Agreement, the
parties hereby consent to the jurisdiction of the state and federal courts in or
for Dallas, Texas. Accordingly, with respect to any such court action, you and
the Companies (a) submit to the personal jurisdiction of such courts; (b)
consent to service of process; and (c) waive any other requirement (whether
imposed by statute, rule of court, or otherwise) with respect to personal
jurisdiction or service of process.
14. Notices, Acknowledgements 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 the
Companies or any 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.
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February 23, 2001
Page 11
(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 Chief Executive
Officer 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 Chief
Executive Officer of WII before the end of such period, and that this
Agreement shall not become effective or enforceable until the expiration of
such revocation period (the "Effective Date").
(e) In the event of any dispute, this Agreement will be construed as
a whole, will be interpreted in accordance with its fair meaning, and will
not be construed strictly for or against either you or the Companies.
(f) The law of the State of Texas will govern any dispute about this
Agreement, including any interpretation or enforcement of this Agreement.
(g) In the event that any provision or portion of a provision of this
Agreement shall be determined to be illegal, invalid or unenforceable, the
remainder of this Agreement shall be enforced to the fullest extent
possible and the illegal, invalid or unenforceable provision or portion of
a provision will be amended by a court of competent jurisdiction to reflect
the parties' intent if possible. If such amendment is not possible, the
illegal, invalid or unenforceable provision or portion of a provision will
be severed from the remainder of this Agreement and the remainder of this
Agreement shall be enforced to the fullest extent possible as if such
illegal, invalid or unenforceable provision or portion of a provision was
not included.
(h) This Agreement may be modified only by a written agreement signed
by you and authorized representatives of the Companies.
(i) This Agreement and the Consulting Indemnification Agreement
constitute the entire agreement between the parties with respect to the
subject matter hereof and supersede all prior agreements between the
parties with respect to any related subject matter, except as provided in
your stock option agreements and the Indemnification Agreement between you
and WII, which remain in effect in accordance with their respective terms,
except as amended by this Agreement.
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February 23, 2001
Page 12
(j) This Agreement shall be binding upon each of the parties and upon
their respective heirs, administrators, representatives, executors,
successors and assigns and shall inure to the benefit of each party and to
their heirs, administrators, representatives, executors, successors, and
assigns.
If you agree to these terms, please sign and date below and return this
Agreement to the Chief Executive Officer of WII within 22 days.
Sincerely,
WYNDHAM INTERNATIONAL, INC.
By_______________________________________
Xxxx Xxxxxxxx
Chief Executive Officer & President
Accepted and agreed to:
____________________________________ _________________________________________
Xxxxx X. Xxxxxxxx Date
