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Exhibit 10.6
[Execution Copy]
STARWOOD HOTELS & RESORTS TRUST
NON-QUALIFIED STOCK OPTION AGREEMENT
DATED FEBRUARY 17, 1998
Starwood Hotels & Resorts Trust, a trust organized under the laws of
Maryland (the "Company"), hereby grants to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (the "Optionee"),
as of February 17, 1998 (the "Option Date"), pursuant to the provisions of the
Starwood Lodging Trust 1995 Long-Term Incentive Plan (as amended and restated)
(the "Plan"), a non-qualified option (the "Option") to purchase from the Company
2,500,000 Paired Shares (as defined in the Plan) at a price per Paired Share
equal to the Fair Market Value (as defined in the Plan) of a Paired Share on the
Option Date upon and subject to the terms and conditions set forth below.
References to employment by the Company shall include employment by a subsidiary
or affiliate of the Company. Capitalized terms not defined herein or in the
Amended and Restated Employment Agreement, dated as of February 17, 1998,
entered into between the Optionee and the Company (the "Employment Agreement")
(for so long as the term of such agreement has not terminated) shall have the
meanings specified in the Plan.
1. Option Subject to Acceptance of Agreement.
The Option may not be exercised unless the Optionee shall accept this
Agreement by executing it in the space provided below and returning such
original execution copy to the Company.
2. Time and Manner of Exercise of Option.
2.1 Maximum Term of Option. In no event may the Option be exercised, in
whole or in part, after ten years from the Option Date (the "Expiration Date").
If the Effective Time (as defined in Section 1.2 of the Amended and Restated
Agreement and Plan of Merger among Starwood Lodging Corporation, Chess
Acquisition Corp., the Company and ITT Corporation, dated as of November 12,
1997 (the "Merger Agreement")) shall not have occurred by March 31, 1998, the
Option shall expire and be of no force and effect effective as of the Option
Date. Notwithstanding the terms of the Plan, the transaction contemplated by the
Merger Agreement shall not constitute a "Change of Control" under the Plan for
purposes of this Agreement.
2.2 Exercise of Option. (a) The Option shall vest and become exercisable
as to one-third of the number of Paired Shares subject to the Option on each
anniversary of December 31, 1997, commencing with the first anniversary
(occurring in 1998) through the third anniversary (occurring in 2000) and
otherwise as provided
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below in this Section 2.2.
(b) If the Optionee's employment by the Company (i) is terminated by the
Company for "Cause" or (ii) is terminated by the Optionee without "Good Reason,"
the portion of the Option which was not theretofore vested and exercisable on
the date of termination shall terminate automatically on the date of
termination. In the event of a termination of the Optionee's employment
described in this Section 2.2(b), the Option, to the extent vested and
exercisable on the date of termination, shall, subject to Section 2.2(d) hereof,
remain exercisable until the earliest to occur of: (i) the date which is three
months following the date of termination, and (ii) the Expiration Date, after
which the Option shall expire. If the Optionee's employment by the Company is
terminated by the Company for "Cause," the date of termination shall be the date
on which the Company delivers a Preliminary Cause Notice. For purposes of this
Agreement, and notwithstanding the terms of the Employment Agreement, "Good
Reason" shall not include the failure, by December 1, 1999, of the Company and
the Optionee to agree to an extension of the Term beyond December 31, 1999.
(c) If the Optionee's employment by the Company is terminated (i) by the
Company other than for "Cause," (ii) by the Optionee with "Good Reason," or
(iii) due to the Optionee's death or Disability, 100% of the portion of the
Option which was not theretofore vested and exercisable on the date of
termination shall vest and become exercisable on the date of termination, and
the Option, to the extent vested and exercisable as of the date of termination,
after taking into account this Section 2.2(c), shall, subject to Section 2.2(d)
hereof, remain exercisable by the Optionee or the Optionee's Legal
Representative or Permitted Transferee, as the case may be, until the earliest
to occur of: (i) the date which is three years following the date of termination
(one year in the case of a termination of the Optionee's employment due to the
Optionee's death or Disability), and (ii) the Expiration Date, after which the
Option shall expire.
(d) If the Optionee dies at any time following a termination of the
Optionee's employment and prior to the expiration of the Option, the Option
shall be exercisable, to the extent exercisable by the Optionee as of the date
of death, by the Optionee's Legal Representative or Permitted Transferee, as the
case may be, until the date which is one year following the date of the
Optionee's death (but no later than the Expiration Date), after which the Option
shall expire.
2.3 Method of Exercise. Subject to the limitations set forth in this
Agreement, the Option may be exercised by the Optionee (1) by giving written
notice to the Company specifying the number of whole Paired Shares to be
purchased and accompanied by payment therefor in full (or arrangement made for
such payment to the Company's satisfaction) either (i) in cash, (ii) previously
owned whole Paired Shares (which the Optionee has held for at least six months
prior to the delivery of such Paired Shares or which the Optionee purchased on
the open market and for which the Optionee
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has good title, free and clear of all liens and encumbrances) having a Fair
Market Value, determined as of the date of exercise, equal to the aggregate
purchase price payable pursuant to the Option by reason of such exercise, (iii)
in cash by a broker-dealer acceptable to the Company to whom the Optionee has
submitted an irrevocable notice of exercise or (iv) a combination of (i) and
(ii), and (2) by executing such documents as the Company may reasonably request.
The Committee shall have sole discretion to disapprove of an election pursuant
to either clause (ii), (iii) or (iv). Any fraction of a Paired Share which would
be required to pay such purchase price shall be disregarded and the remaining
amount due shall be paid in cash by the Optionee. No certificate representing a
Paired Share shall be delivered until the full purchase price therefor has been
paid.
2.4 Termination of Option. (a) In no event may the Option be exercised
after it terminates as set forth in this Agreement.
(b) In the event that rights to purchase all or a portion of the Paired
Shares subject to the Option expire or are exercised, canceled, forfeited or
transferred pursuant to a Limited Transfer (as defined below), the Optionee
shall promptly return this Agreement to the Company for full or partial
cancellation, as the case may be. Such cancellation shall be effective
regardless of whether the Optionee returns this Agreement. If the Optionee
continues to have rights to purchase Paired Shares hereunder, the Company shall,
within 10 days of the Optionee's delivery of this Agreement to the Company,
either (i) ▇▇▇▇ this Agreement to indicate the extent to which the Option has
expired or been exercised, canceled, forfeited or transferred or (ii) issue to
the Optionee a substitute option agreement applicable to such rights, which
agreement shall otherwise be identical to this Agreement in form and substance.
3. Additional Terms and Conditions of Option.
3.1 Transferability of Option. (a) For the period commencing on the Option
Date and ending on June 30, 1998, the Optionee may transfer (a "Limited
Transfer") to Madison ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Eilian and/or any other officers of the
Company or Starwood Capital Group, LLC, a Connecticut limited liability company,
designated by the Optionee (each, a "Limited Transferee") the right to purchase
from the Company an aggregate of 500,000 Paired Shares subject to the Option. A
Limited Transfer shall be made only pursuant to a written agreement approved by
the Company prior to the execution thereof. The aggregate number of Paired
Shares subject to the Option shall be reduced by the number of Paired Shares
subject to each Limited Transfer.
(b) The Option may not be transferred by the Optionee other than as
provided in Section 3.1(a) above, by will or the laws of descent and
distribution or pursuant to beneficiary designation procedures approved by the
Company. Except to the extent permitted by the foregoing sentence, during the
Optionee's lifetime the Option is
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exercisable only by the Optionee or the Optionee's Legal Representative. Except
as permitted by the foregoing, the Option may not be sold, transferred,
assigned, pledged, hypothecated, voluntarily encumbered or otherwise disposed of
(whether by operation of law or otherwise) or be subject to execution,
attachment or similar process. Upon any attempt to so sell, transfer, assign,
pledge, hypothecate, voluntarily encumber or otherwise dispose of the Option,
the Option and all rights hereunder shall, to the extent of any such attempt,
immediately become null and void.
3.2 Investment Representation. The Optionee hereby represents and
covenants that (a) any Paired Shares purchased upon exercise of the Option will
be purchased for investment and not with a view to the distribution thereof
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"), unless such purchase has been registered under the Securities Act and any
applicable state securities laws; (b) any subsequent sale of any such Paired
Shares shall be made either pursuant to an effective registration statement
under the Securities Act and any applicable state securities laws, or pursuant
to an exemption from registration under the Securities Act and such state
securities laws; and (c) if requested by the Company, the Optionee shall submit
a written statement, in form satisfactory to the Company, to the effect that
such representation (x) is true and correct as of the date of purchase of any
Paired Shares hereunder or (y) is true and correct as of the date of any sale of
any such Paired Shares, as applicable. As a further condition precedent to any
exercise of the Option, the Optionee shall comply with all regulations and
requirements of any regulatory authority having control of or supervision over
the issuance or delivery of the Paired Shares and, in connection therewith,
shall execute any documents which the Board or the Committee shall in its sole
discretion deem necessary or advisable.
3.3 Withholding Taxes. (a) As a condition precedent to the delivery of
Paired Shares upon exercise of the Option, the Optionee shall, upon request by
the Company, pay to the Company in addition to the purchase price of the Paired
Shares, such amount of cash as the Company may be required, under all applicable
federal, state, local or other laws or regulations, to withhold and pay over as
income or other withholding taxes (the "Required Tax Payments") with respect to
such exercise of the Option. If the Optionee shall fail to advance the Required
Tax Payments after request by the Company, the Company may, in its discretion,
deduct any Required Tax Payments from any amount then or thereafter payable by
the Company to the Optionee.
(b) The Optionee may elect to satisfy his or her obligation to pay the
Required Tax Payments by any of the following means: (1) a cash payment to the
Company pursuant to Section 3.3(a), (2) delivery to the Company of previously
owned whole Paired Shares (which the Optionee has held for at least six months
prior to the delivery of such Paired Shares or which the Optionee purchased on
the open market and for which the Optionee has good title, free and clear of all
liens and encumbrances)
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having a Fair Market Value, determined as of the date the obligation to withhold
or pay taxes first arises in connection with the Option (the "Tax Date"), equal
to the Required Tax Payments, (3) a cash payment by a broker-dealer acceptable
to the Company to whom the Optionee has submitted an irrevocable notice of
exercise or (4) any combination of (1) and (2). The Committee shall have sole
discretion to disapprove of an election pursuant to any of clauses (2)-(4).
Paired Shares to be delivered may not have a Fair Market Value in excess of the
minimum amount of the Required Tax Payments. Any fraction of a Paired Share
which would be required to satisfy any such obligation shall be disregarded and
the remaining amount due shall be paid in cash by the Optionee. No certificate
representing a Paired Share shall be delivered until the Required Tax Payments
have been satisfied in full.
(c) Unless the Committee otherwise determines, if the Optionee is subject
to Section 16 of the Exchange Act, the Optionee may deliver to the Company
previously owned whole Paired Shares in accordance with Section 3.3(b), but only
if such delivery is in connection with the delivery of Paired Shares in payment
of the exercise price of the Option.
3.4 Adjustment. In the event of any stock split, stock dividend,
recapitalization, reorganization, merger, consolidation, combination, exchange
of shares, liquidation, spin-off or other similar change in capitalization or
event, or any distribution to holders of Paired Shares other than a regular cash
dividend, the number and class of securities subject to the Option and the
purchase price per security shall be appropriately adjusted by the Committee
without an increase in the aggregate purchase price. If any adjustment would
result in a fractional security being subject to the Option, the Company shall
pay the Optionee, in connection with the first exercise of the Option, in whole
or in part, occurring after such adjustment, an amount in cash determined by
multiplying (i) the fraction of such security (rounded to the nearest hundredth)
by (ii) the excess, if any, of (A) the fair market value of a Paired Share on
the exercise date over (B) the exercise price of the Option. The decision of the
Committee regarding any such adjustment shall be final, binding and conclusive.
3.5 Compliance with Applicable Law. The Option is subject to the condition
that if the listing, registration or qualification of the Paired Shares subject
to the Option upon any securities exchange or under any law, or the consent or
approval of any governmental body, or the taking of any other action is
necessary or desirable as a condition of, or in connection with, the purchase or
delivery of Paired Shares hereunder, the Option may not be exercised, in whole
or in part, unless such listing, registration, qualification, consent or
approval shall have been effected or obtained, free of any conditions not
acceptable to the Company. The Company agrees to use reasonable efforts to
effect or obtain any such listing, registration, qualification, consent or
approval.
3.6 Delivery of Certificates. Upon the exercise of the Option, in whole
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or in part, the Company shall deliver or cause to be delivered one or more
certificates representing the number of Paired Shares purchased against full
payment therefor. The Company shall pay all original issue or transfer taxes and
all fees and expenses incident to such delivery, except as otherwise provided in
Section 3.3 hereof.
3.7 Option Confers No Rights as Stockholder. The Optionee shall not be
entitled to any privileges of ownership with respect to Paired Shares subject to
the Option unless and until purchased and delivered upon the exercise of the
Option, in whole or in part, and the Optionee becomes a stockholder of record
with respect to such delivered Paired Shares; and the Optionee shall not be
considered a stockholder of the Company or the Corporation with respect to any
such Paired Shares not so purchased and delivered.
3.8 Option Confers No Rights to Continued Employment. In no event shall
the granting of the Option or its acceptance by the Optionee give or be deemed
to give the Optionee any right to continued employment by the Company or any
affiliate of the Company.
3.9 Decisions of Board or Committee. The Board or the Committee shall have
the right to resolve all questions which may arise in connection with the Option
or its exercise. Any interpretation, determination or other action made or taken
by the Board or the Committee regarding the Plan or this Agreement shall be
final, binding and conclusive (subject to the provisions for termination by the
Company for Cause and termination by the Optionee for Good Reason as set forth
in the Employment Agreement).
3.10 Company to Reserve Paired Shares. The Company shall at all times
prior to the expiration or termination of the Option, reserve or cause to be
reserved and keep or cause to be kept available, either in its treasury or out
of its authorized but unissued Paired Shares, the full number of Paired Shares
subject to the Option from time to time.
3.11 Agreement Subject to the Plan. Except to the extent otherwise
expressly provided herein, this Agreement is subject to the provisions of the
Plan and shall be interpreted in accordance therewith. The Optionee hereby
acknowledges receipt of a copy of the Plan.
4. Miscellaneous Provisions.
4.1 Designation as Non-Qualified Stock Option. The Option is hereby
designated as not constituting an "incentive stock option" within meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"); this
Agreement shall be interpreted and treated consistently with such designation.
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4.2 Meaning of Certain Terms. (a) As used herein, the term "Legal
Representative" shall include an executor, administrator, legal representative,
beneficiary or similar person and the term "Permitted Transferee" shall include
any transferee (i) pursuant to a transfer permitted under Section 4.4 of the
Plan and Section 3.1 hereof or (ii) designated pursuant to beneficiary
designation procedures which may be approved by the Company.
4.3 Successors. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and any person or persons
who shall, upon the death of the Optionee, acquire any rights hereunder in
accordance with this Agreement or the Plan.
4.4 Notices. All notices, requests or other communications provided for in
this Agreement shall be made, if to the Company, to the Secretary of the Company
at the Company's principal executive office, and if to the Optionee, to his
address on the books of the Company (or to such other address as the Company or
Optionee may give to the other for purposes of notice hereunder).
Copies of all notices given to the Company shall be sent to:
Sidley & Austin
▇▇▇ ▇. ▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
And
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All notices, requests or other communications provided for in this
Agreement shall be made in writing either (a) by personal delivery to the party
entitled thereto, (b) by facsimile with confirmation of receipt, (c) by mailing
in the United States mails to the last known address of the party entitled
thereto or (d) by express courier service. The notice, request or other
communication shall be deemed to be received upon personal delivery, upon
confirmation of receipt of facsimile transmission or upon receipt by the party
entitled thereto if by United States mail or express courier service; provided,
however, that if a notice, request or other communication is not received during
regular business hours, it shall be deemed to be received on the next succeeding
business day of
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the Company.
4.5 Governing Law. The Option, this Agreement, and all determinations made
and actions taken pursuant hereto and thereto, to the extent not governed by the
laws of the United States, shall be governed by the laws of the State of New
York and construed in accordance therewith without giving effect to principles
of conflicts of laws.
4.6 Counterparts. This Agreement may be executed in two counterparts each
of which shall be deemed an original and both of which together shall constitute
one and the same instrument.
4.7 Disclaimer. The name "Starwood Hotels & Resorts Trust" is the
designation of a Maryland real estate investment trust and its Trustees (as
Trustees but not personally) under a Declaration of Trust dated August 25, 1969,
as amended and restated, and all persons dealing with Starwood Hotels & Resorts
Trust must look solely to Starwood Hotels & Resorts Trust's property for the
enforcement of any claims against Starwood Hotels & Resorts Trust, as the
Trustees, officers, agents and security holders of Starwood Hotels & Resorts
Trust assume no personal obligations of Starwood Hotels & Resorts Trust, and
their respective property shall not be subject to claims of any person relating
to such obligation.
STARWOOD HOTELS & RESORTS TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Senior Vice President and Chief
Financial Officer
Accepted
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
"Optionee"
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