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Exhibit 10.27(A)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into effective as of June 12, 1998,
by and between BridgeStreet Accommodations, Inc., a Delaware corporation
("BridgeStreet"), and Xxxx X. Xxxxxxxxx, of Florham Park, New Jersey (the
"Executive").
In consideration of the mutual promises, terms, provisions and
conditions set forth in this Agreement, the parties hereby agree as follows:
1. Employment. Subject to the terms and conditions set forth in this
Agreement, BridgeStreet hereby offers and the Executive hereby accepts
employment.
2. Term. Subject to earlier termination as hereafter provided, the
Executive's employment hereunder shall be for a three (3) year term beginning as
of the date hereof. The term of this Agreement, as from time to time extended or
renewed, is hereafter referred to as "the term of this Agreement" or "the term
hereof."
3. Capacity and Performance.
(a) During the term hereof, the Executive shall serve as the
Chief Executive Officer and President of BridgeStreet. In addition, and
without further compensation, the Executive shall serve as a director
and/or officer of BridgeStreet and/or one or more of BridgeStreet's
Affiliates if so elected or appointed from time to time.
(b) During the term hereof, the Executive shall be employed by
BridgeStreet on a full-time basis. The Executive shall have all powers
and duties consistent with his position, subject to the direction and
control of BridgeStreet's Board of Directors (the "Board"), and shall
perform such other duties and responsibilities on behalf of
BridgeStreet and its Affiliates as may reasonably be designated from
time to time by the Board.
(c) During the term hereof, the Executive shall devote his
full business time and his best efforts, business judgment, skill and
knowledge exclusively to the advancement of the business and interests
of BridgeStreet and its Affiliates and to the discharge of his duties
and responsibilities hereunder. During the term hereof, the Executive
shall not engage in any other business activity or serve in any
industry, trade, professional, governmental or academic position which
could materially conflict with the performance of the Executive's
duties and responsibilities during the term of this Agreement.
4. Compensation and Benefits. As compensation for all services
performed by the Executive under and during the term hereof and subject to
performance of the Executive's duties and of the obligations of the Executive,
pursuant to this Agreement or otherwise:
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(a) Base Salary. During the term hereof, BridgeStreet shall
pay the Executive a base salary of two hundred thousand dollars
($200,000) during the first year of the term hereof, two hundred
fourteen thousand dollars ($214,000) during the second year of the term
hereof and two hundred twenty-nine thousand dollars ($229,000) during
the third year of the term hereof, payable in accordance with the
payroll practices of BridgeStreet for its executives and subject to
increase from time to time by the Board or a compensation committee of
the Board, in its sole discretion. Such base salary, as from time to
time increased, is hereafter referred to as the "Base Salary".
(b) Stock Options. The Executive shall receive stock options
in accordance with the Stock Option Agreements attached hereto as
EXHIBIT A and executed simultaneously with the execution and delivery
of this Agreement.
(c) Other Benefits. During the term hereof and subject to any
contribution therefor generally required of employees of BridgeStreet,
the Executive shall be entitled to receive long-term disability and
medical insurance coverage and to participate in any and all employee
benefit plans (other than cash bonus plans) from time to time in effect
for employees of BridgeStreet generally, except to the extent such
plans are in a category of benefit otherwise provided to the Executive.
Such participation shall be subject to (i) the terms of the applicable
plan documents, and (ii) the discretion of the Board or any
administrative or other committee provided for in or contemplated by
such plan. BridgeStreet may alter, modify, add to or delete its
employee benefit plans at any time as it, in its sole judgment,
determines to be appropriate, without recourse by the Executive.
(d) Business Expenses. BridgeStreet shall pay or reimburse the
Executive for all reasonable and necessary business expenses incurred
or paid by the Executive in the performance of his duties and
responsibilities hereunder, subject to any maximum annual limit and
other restrictions on such expenses set by the Board and to such
reasonable substantiation and documentation as may be specified by
BridgeStreet from time to time.
(e) Travel Expenses. BridgeStreet shall pay or reimburse the
Executive for all reasonable expenses incurred or paid by the Executive and his
spouse for a period of twelve (12) months after the execution of this Agreement
with respect to traveling to and from BridgeStreet's corporate headquarters and
Executive's primary residences, including: (i) the cost of airfare to the
Cleveland area; (ii) all ground transportation costs including taxicabs and
automobile rental; (iii) all lodging expenses; and (iv) any other reasonable
transportation expenses.
(f) Life Insurance. BridgeStreet shall pay the premiums on a
term life insurance policy covering the Executive. The death proceeds shall not
be less than $200,000, and the Executive shall designate in his sole and
absolute discretion the beneficiary or beneficiaries of the policy. If the
Executive does not designate a beneficiary, the proceeds will be payable to his
estate. Executive knows of no reason why such insurance shall not be obtainable
at standard premium rates.
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(g) Disability Policy. BridgeStreet shall pay the premiums on
a disability policy for the benefit of the Executive. The policy will provide
benefit payments calculated on an annual basis which on an after tax basis will
equal $120,000 per annum. In determining the after tax basis, the maximum
federal and applicable state income tax rates shall be used.
5. Termination of Employment. Notwithstanding the provisions of Section 2
hereof, the Executive's employment hereunder shall terminate prior to the
expiration of the term under the following circumstances:
(a) Death. In the event of the Executive's death during the
term hereof, the Executive's employment hereunder shall immediately and
automatically terminate. In that event, BridgeStreet shall pay to the
Executive's designated beneficiary or, if no beneficiary has been
designated by the Executive, to his estate, any earned and unpaid Base
Salary, prorated through the date of his death.
(b) Disability.
(i) BridgeStreet may terminate the Executive's
employment hereunder, upon notice to the Executive,
in the event that the Executive becomes disabled
through any illness, injury, accident or condition of
either a physical or psychological nature and, as a
result, is unable to perform substantially all of his
duties and responsibilities hereunder for one hundred
twenty (120) consecutive days or for an aggregate of
one hundred eighty (180) days during any period of
three hundred sixty-five (365) consecutive calendar
days.
(ii) The Board may designate another executive
to act in the Executive's place during any period of
the Executive's disability. Notwithstanding any such
designation, the Executive shall continue to receive
the Base Salary in accordance with Section 4(a) and
benefits in accordance with Section 4(c), to the
extent permitted by the then-current terms of the
applicable benefit plans, until the Executive becomes
eligible for disability income benefits under the
disability policy.
(iii) While receiving disability income payments
under BridgeStreet's disability income plan, if any,
the Executive shall not be entitled to receive any
Base Salary under Section 4(a) hereof, but shall
continue to participate in BridgeStreet benefit plans
in accordance with Section 4(c) and the terms of such
plans, to the extent permitted by such plans, until
the termination of his employment.
(iv) If any question shall arise as to whether
during any period the Executive is disabled through
any illness, injury, accident or condition of either
a physical or psychological nature so as to be unable
to perform substantially all of his duties and
responsibilities hereunder, the Executive
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may, and at the request of BridgeStreet shall, submit
to a medical examination by a physician selected by
BridgeStreet to whom the Executive or his duly
appointed guardian, if any, has no reasonable
objection to determine whether the Executive is so
disabled. If the Executive does not agree with the
determination of the physician, the Executive may
submit to a medical examination by a second physician
selected by the Executive to whom BridgeStreet has no
reasonable objection to determine whether the
Executive is so disabled. If the two physicians
selected agree as to whether the Executive is
disabled, such determination shall for the purposes
of this Agreement be conclusive of the issue. If the
two physicians selected do not agree as to whether
the Executive is disabled, then those two are to
select a third physician to examine the Executive and
to issue a report containing an opinion as to whether
the Executive is disabled. If these two physicians
cannot agree upon the selection of the third
physician, that physician shall be selected by the
president of the local medical society in the
community where the Executive resides. BridgeStreet
and the Executive shall be bound by the opinion of
the two physicians, or if the two physicians cannot
agree, by the opinion of the third physician. If such
question shall arise and the Executive shall fail to
submit to such medical examination, BridgeStreet's
determination of the issue shall be binding on the
Executive.
(c) By BridgeStreet for Cause. BridgeStreet may terminate the
Executive's employment hereunder for Cause at any time upon written
notice to the Executive setting forth the specific facts and
circumstances constituting Cause and the specific actions required to
cure. The following, as determined by the Board in its reasonable
judgment, shall constitute Cause for termination:
(i) The Executive's repeated failure to perform
(other than by reason of disability), or gross
negligence in the performance of, his material duties
and responsibilities hereunder and the continuance of
such failure or negligence for a period of thirty
(30) days after written notice is received by the
Executive;
(ii) Material breach by the Executive of any
provision of this Agreement or any other written
agreement between the Executive and BridgeStreet or
any of its Affiliates for a period of thirty (30)
days after written notice is received by the
Executive;
(iii) Other conduct whereby the Executive is
convicted of (a) a felony or (b) a misdemeanor, other
than a traffic violation, which involves moral
turpitude and which, in the reasonable judgment of
the Board, reflects adversely on the reputation of
BridgeStreet.
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Upon the giving of notice of termination of the Executive's
employment hereunder for Cause, BridgeStreet shall not have any further
obligation or liability to the Executive, other than for Base Salary
earned and unpaid at the date of termination.
(d) By Executive for Cause. The Executive may terminate his
employment hereunder for Cause at any time upon written notice to BridgeStreet
setting forth the specific facts and circumstances constituting Cause and the
specific actions required to cure. For this purpose, Cause shall mean a material
breach by BridgeStreet of any provision of this Agreement or any other written
agreement between Executive and BridgeStreet for a period of thirty (30) days
after written notice is received by BridgeStreet.
6. Effect of Termination. The provisions of this Section 6 shall apply
to termination due to the expiration of the term, pursuant to Section 5 or
otherwise.
(a) Except as otherwise provided in paragraph (d), payment by
BridgeStreet of any Base Salary and contributions to the cost of the
Executive's continued participation in BridgeStreet's group health and
dental plans, if any, that are due the Executive in each case under the
applicable termination provision of Section 5 shall constitute the
entire obligation of BridgeStreet to the Executive.
(b) Except as otherwise provided in paragraph (d), benefits
shall terminate pursuant to the terms of the applicable benefit plans
based on the date of termination of the Executive's employment without
regard to any continuation of Base Salary or other payment to the
Executive following such date of termination.
(c) Except as otherwise provided in paragraph (d), provisions
of this Agreement shall survive any termination if so provided herein
or if necessary or desirable fully to accomplish the purposes of such
provisions, including without limitation the obligations of the
Executive under Sections 7 and 8 hereof. The Executive recognizes that
no compensation is earned after termination of employment except as
provided in paragraph (d).
(d) In the event the Executive's employment by BridgeStreet is
terminated by BridgeStreet notwithstanding the terms of this Agreement, or
Executive terminates this Agreement for Cause:
(i) BridgeStreet shall continue to pay to the Executive
his Base Salary as of the date of termination for the term of
this Agreement or twelve months, whichever is longer. The
Executive shall have no obligation to mitigate and shall
receive his Base Salary without any reduction for other
amounts earned by the Executive during the post-termination
period.
(ii) BridgeStreet shall continue to provide Executive
with the medical insurance coverage contemplated by Section
4(c) for the term of this Agreement or twelve months,
whichever is longer.
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7. Confidential Information.
(a) The Executive acknowledges that BridgeStreet and its
Affiliates will continually develop Confidential Information, that the
Executive may develop Confidential Information for BridgeStreet or its
Affiliates and that the Executive may learn of Confidential
Information. The Executive agrees that, except as required for the
proper performance of his duties for BridgeStreet, he will not,
directly or indirectly, use or disclose any Confidential Information,
as defined below. The Executive understands and agrees that this
restriction will continue to apply after his employment terminates,
regardless of the reason for termination.
(b) The Executive agrees that all Confidential Information
which he creates or to which he has access as a result of his
employment or the rendering of other services to BridgeStreet is and
shall remain the sole and exclusive property of BridgeStreet. Except as
required for the proper performance of his duties, the Executive will
not copy any documents, tapes or other media containing Confidential
Information ("Documents") or remove any Documents, or copies, from
BridgeStreet's premises. The Executive will return to BridgeStreet
immediately after his employment terminates, and at such other times as
may be specified by BridgeStreet, all Documents and copies and all
other property of BridgeStreet then in his possession or control.
8. Restricted Activities. The Executive agrees that some restrictions
on his activities during and after his employment are necessary to protect the
goodwill, Confidential Information and other legitimate interests of
BridgeStreet and its Affiliates:
(a) The Executive agrees that, during the term hereof and for
a period of two (2) years immediately following termination of his
employment (the "Non-Competition Period"), he will not, directly or
indirectly, whether as an owner, partner, investor, consultant,
employee or otherwise, provide services to or engage in, or undertake
any planning to engage in, any business engaged in the extended stay
lodgings business without the prior written consent of BridgeStreet, it
being understood that hotels, as such, are not included within such
prohibition.
(b) The Executive agrees that, during the term hereof, he will
not undertake any outside activity, whether or not competitive with the
business of BridgeStreet or any of its Affiliates, that could
reasonably give rise to a conflict of interest or otherwise interfere
with his duties and obligations to BridgeStreet or any of its
Affiliates.
(c) The Executive further agrees that during the term hereof
and during the Non-Competition Period, the Executive will not, and will
not assist anyone else to, (i) hire any employee of BridgeStreet or any
of its Affiliates or seek to persuade any employee of BridgeStreet or
any of its Affiliates to discontinue employment, (ii) solicit or
encourage any customer or vendor of or lessor to BridgeStreet or any of
its Affiliates to terminate or diminish its relationship with
BridgeStreet or any of its Affiliates, (iii) seek to persuade any
customer or prospective customer of BridgeStreet or any of its
Affiliates
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to conduct with anyone else any business or activity that such customer
or prospective customer conducts or could conduct with BridgeStreet or
any of its Affiliates, or (iv) call upon any prospective acquisition
candidates on the Executive's own behalf or on behalf of any third
party, which candidate was either called upon by the Executive or for
which the Executive made or had access to an acquisition analysis for
BridgeStreet.
9. Enforcement of Covenants. The Executive acknowledges that he has
carefully read and considered all the terms and conditions of this Agreement,
including the restraints imposed upon him pursuant to Sections 7 and 8 hereof.
The Executive agrees that said restraints are necessary for the reasonable and
proper protection of BridgeStreet and its Affiliates and that each and every one
of the restraints is reasonable in respect to subject matter, length of time and
geographic area. The Executive further agrees that all goodwill of BridgeStreet
and its Affiliates is their exclusive property. The Executive further
acknowledges and agrees that, were he to breach any of the covenants contained
in Sections 7 or 8 hereof, the damage would be irreparable. The Executive
therefore agrees that BridgeStreet or any of its Affiliates, as the case may be,
in addition to any other remedies available to it, shall be entitled to
preliminary and permanent injunctive relief against any breach or threatened
breach by the Executive of any of said covenants, without having to post bond.
The parties further agree that, in the event that any provision of Sections 7 or
8 hereof shall be determined by any court of competent jurisdiction to be
unenforceable by reason of its being extended over too great a time, too large a
geographic area or too great a range of activities, such provision shall be
deemed to be modified to permit its enforcement to the maximum extent permitted
by law.
10. Conflicting Agreements. The Executive and BridgeStreet hereby
respectively represent and warrant that the execution of this Agreement and the
performance of the obligations hereunder will not breach or be in conflict with
any other agreement to which they are a party or are bound and that they are not
subject to any covenants against competition or similar covenants that would
affect the performance of their obligations hereunder. The Executive will not
disclose to or use any proprietary information of a third party without such
party's consent.
11. Definitions. Words or phrases which are initially capitalized or
are within quotation marks shall have the meanings provided in this Section 12
and as provided elsewhere herein. For purposes of this Agreement, the following
definitions apply:
(a) "Affiliates" means all persons and entities directly or
indirectly controlling, controlled by or under common control with
BridgeStreet, where control may be by either management authority or
equity interest.
(b) "Confidential Information" means any and all information
of BridgeStreet or of its Affiliates that is not generally known by
others with whom BridgeStreet or any of its Affiliates does, or plans
to, compete or do business, including but not limited to (i)
BridgeStreet's or any of its Affiliates' products and services,
technical data, methods and processes, (ii) BridgeStreet's or any of
its Affiliates' marketing activities and strategic plans, (iii)
BridgeStreet's or any of its Affiliates' costs and sources of supply,
(iv) the
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identity and special needs of BridgeStreet's or any of its Affiliates'
customers and prospective customers, vendors and prospective vendors,
and acquisition candidates and (v) the people and organizations with
whom BridgeStreet or any of its Affiliates has business relationships
and those relationships. Confidential Information also includes such
information that BridgeStreet or any of its Affiliates may receive or
has received belonging to customers or others who do business with
BridgeStreet or any of its Affiliates. Notwithstanding anything herein
to the contrary, Confidential Information does not include any
information which is now generally publicly known or which subsequently
becomes generally publicly known other than as a direct or indirect
result of the breach of this Agreement by the Executive or any
information which BridgeStreet does not treat as Confidential
Information.
(c) "Person" means an individual, a corporation, an
association, a partnership, an estate, a trust and any other entity or
organization, other than BridgeStreet or any of its Affiliates.
12. Withholding. All payments made under this Agreement shall be
reduced by any tax or other amounts required to be withheld under applicable
law.
13. Assignment. Neither BridgeStreet nor the Executive may make any
assignment of this Agreement or any interest herein, by operation of law or
otherwise, without the prior written consent of the other; provided, however,
that BridgeStreet may assign its rights and obligations under this Agreement
with the consent of the Executive in the event that BridgeStreet shall hereafter
effect a reorganization, consolidate with, or merge into, any other Person or
transfer all or substantially all of its properties or assets to any other
Person ("Change of Control"). If the Executive does not consent, he shall resign
upon such Change of Control and such resignation shall be treated as a
termination by the Executive for Cause for the purposes of this Agreement. This
Agreement shall inure to the benefit of and be binding upon BridgeStreet and the
Executive, their respective successors, executors, administrators, heirs and
permitted assigns.
14. Severability. If any portion or provision of this Agreement shall
to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provision in circumstances other than those as to which it is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
15. Waiver. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of either party to
require the performance of any term or obligation of this Agreement, or the
waiver by either party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
16. Notices. Any and all notices, requests, demands and other
communications provided for by this Agreement shall be in writing and shall be
effective when delivered in
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person or deposited in the United States mail, postage prepaid, registered or
certified, and addressed to the Executive at his last known address on the books
of BridgeStreet or, in the case of BridgeStreet, at BridgeStreet's principal
place of business, attention of Chairman of the Board, or to such other address
as either party may specify by notice to the other actually received.
17. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior communications, agreements and
understandings, written or oral, with respect to the terms and conditions of the
Executive's employment.
18. Amendment. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by an expressly authorized
representative of BridgeStreet.
19. Headings. The headings and captions in this Agreement are for
convenience only and in no way define or describe the scope or content of any
provision of this Agreement.
20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
21. Governing Law. This Agreement shall be construed and enforced under
and be governed in all respects by the laws of the State of Delaware, without
regard to the conflict of laws principles thereof. Each party hereby agrees to
submit himself or itself to the jurisdiction and venue of the courts of the
State of Delaware for purposes of any suit, action, or other proceeding arising
out of this Agreement and to the subject matter of the same, and hereby waives,
and agrees not to assert, as a defense in any such suit, action, or proceeding
that he or it is not subject to such jurisdiction, or that such suit, action or
proceeding may not be brought or is not maintainable in such courts, or that any
suit, action, or proceeding brought in any other court is not transferable to
any such Delaware court.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Executive and BridgeStreet, by its duly authorized
representative, as of the date first above written.
EXECUTIVE: BRIDGESTREET ACCOMMODATIONS, INC.
/s/ Xxxx X. Xxxxxxxxx /s/ Xxxx X. Xxxxxxxx
____________________________ By___________________________________
Xxxx X. Xxxxxxxxx Name: Xxxx X. Xxxxxxxx
Title: Chairman of the Board
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EXHIBIT A
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT between BridgeStreet Accommodations, Inc.,
a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxxxx (the "Grantee")
dated effective as of June 12, 1998 (the "Date of Grant").
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto act and agree as follows:
Section 1. The Plan
This Agreement is subject in every respect to the terms of the
Company's 1997 Equity Incentive Plan, as amended (the "Plan"), a copy of which
is attached hereto as Exhibit A and is incorporated herein in its entirety by
this reference. Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Plan.
Section 2. Grant of Option
The Company hereby grants to the Grantee, as of the Date of Grant, an
option (the "Option") to purchase up to two hundred thousand (200,000) shares of
Common Stock, par value $.01 per share, of the Company (the "Option Shares") at
a price per share of $7.50, both the price and the number of shares being
subject to adjustment only as provided in the Plan.
Section 3. Terms of Option
Subject to such further limitations as are provided herein, the Option
shall become exercisable as follows:
(i) 125,000 of the Option Shares shall be exercisable from and
after the date hereof;
(ii) 37,500 of the Option Shares shall be exercisable on or
after the first anniversary of the Date of Grant; and
(iii) 37,500 of the Option Shares shall be exercisable on or
after the second anniversary of the Date of Grant.
Section 4. Termination of the Option
The Option and all rights hereunder with respect thereto, to the extent
such rights shall not have been exercised, shall terminate and become null and
void after the close of business on the day that is ten (10) years from the Date
of Grant (the "Option Term").
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Section 5. Cessation of Grantee's Employment
(a) If the Grantee ceases to be employed by the Company either by
reason of his or her death or by reason of termination by Grantee without Cause
during the Option Term, the Option shall be exercisable, to the extent the
Option was exercisable at the time of the Grantee's death or termination, as the
case may be, either by the Grantee's executor or administrator or, if not so
exercised, by the legatees or distributees of the Grantee's estate, in the event
of death, in all events only during the one (1) year period immediately
following the Grantee's death or termination, as the case may be, after which
time the Option shall terminate.
(b) If the Grantee ceases to be employed by the Company by reason of a
Change of Control, by termination by the Company without Cause, or by
termination by Grantee for Cause, the Option shall become immediately
exercisable as to all remaining Option Shares by the Grantee only during the one
(1) year period immediately following such cessation or termination, as the case
may be, after which time the Option shall terminate.
(c) Notwithstanding any other provisions set forth herein or in the
Plan, in no event shall the Option be exercised after the expiration of the
Option Term.
(d) Notwithstanding any other provisions set forth herein or in the
Plan, the Option shall terminate automatically and without notice to the Grantee
on the date the Grantee's employment is terminated for "Cause."
(e) For the purposes hereof:
(i) "Cause" shall mean cause as defined in the Employment
Agreement dated June 12, 1998, between the Company and the Grantee, except for a
termination by the Executive for Cause pursuant to Section 13 thereof; and
(ii) "Change of Control" shall mean a merger, consolidation,
tender offer, sale of all or substantially all of the Company's assets or a
comparable transaction in which the holders of the Company's outstanding voting
securities (including other securities convertible or exercisable therefor) as
of immediately prior to such transaction do not hold immediately following such
transaction securities of the surviving or acquiring entity (or the direct or
indirect parent of such entity) entitled to cast a majority of the votes
entitled to be cast for the election of Directors.
Section 6. Exercise of Option
(a) The Grantee may exercise the Option with respect to all or any part
of the number of Option Shares then exercisable hereunder by giving written
notice of election to the Company, attention: Treasurer. Such notice shall
specify the number of Option Shares as to which the Option is to be exercised.
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(b) At the time the Option is exercised, the Grantee shall make full
payment for the Option Shares purchased, in cash, certified check or bank
cashier's check, or through the surrender of shares of Common Stock at their
fair market value on the date of exercise or a note pursuant to a cashless
exercise program that the Company shall adopt. The Grantor also shall pay to the
Company or make provision satisfactory to the Company for the payment of any
taxes required by law to be withheld by the Company at the time of the exercise
of the Option or the sale of the Option Shares acquired upon such exercise.
(c) In the event exercise of the Option shall require the Company to
issue a fractional share of Common Stock of the Company, such fraction shall be
disregarded and the purchase price payable in connection with such exercise
shall be appropriately reduced. Any such fractional share shall be carried
forward and added to any shares covered by future exercise(s) of the Option.
(d) Notwithstanding anything to the contrary contained herein, the
Option shall not be exercisable unless either: (a) a registration statement
under the Securities Act of 1933, as amended (the "Act"), with respect to the
Option Shares shall have become, and continues to be, effective; (b) the Grantee
(i) shall have represented, warranted and agreed, in form and substance
satisfactory to the Company, at the time of exercising the Option, that he or
she is acquiring the Option Shares for his or her own account, for investment
and not with a view to or in connection with any distribution, (ii) shall have
agreed to restrictions on transfer in form and substance satisfactory to the
Company, and (iii) shall have agreed to an endorsement which makes appropriate
reference to such representations, warranties, agreements and restrictions on
the certificate(s) representing the Option Shares; or (c) the Grantee shall have
complied with any other applicable exemption requirement to registration under
the Act. The Company shall use its best efforts to ensure that a registration
statement has become and continues to be effective with respect to the offer and
sale of the Option Shares to the Grantee.
Section 7. No Rights of a Shareholder
Neither the Grantee nor any personal representative shall be, or shall
have any of the rights and privileges of, a shareholder of the Company with
respect to any Option Shares, in whole or in part, prior to the date of exercise
of the Option.
Section 8. Nontransferability of Option
During the Grantee's lifetime, unless otherwise allowed by the Board of
Directors of the Company pursuant to Section 6.3 of the Plan, the Option shall
be exercisable only by the Grantee, and the Option shall not in any event be
transferable except, in case of the death of the Grantee, by will or the laws of
descent and distribution.
Section 9. Employment not Affected
Neither the granting of the Option nor its exercise shall be construed
as granting to the Grantee any right with respect to his or her continued
employment by the Company. Except as may otherwise be limited by a written
agreement between the Company and the Grantee,
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the right of the Company to terminate at will the Grantee's employment at any
time (whether by dismissal, discharge, retirement or otherwise) is specifically
reserved by the Company.
Section 10. Amendment of Option
The Option may be amended or modified at any time by the Company;
provided, however, that the Grantee's consent to such amendment or modification
shall be required unless the Board of Directors or the Compensation Committee of
the Company determines that the amendment or modification, taking into account
any related action, would not materially and adversely affect the Grantee.
Section 11. Notice
(a) Any notices required or permitted hereunder shall be addressed to
the Company at 00000 Xxxxxxxxxx Xxxx, Xxxxx, Xxxx 00000, Attention: Treasurer,
or to the Grantee at the most current address of the Grantee appearing in the
records of the Company, as the case may be.
(b) Either the Company or the Grantee may, by notice to the other given
in the manner provided in Section 11(a), change his, her or its address for
future notice.
Section 12. Governing Law
The validity, construction, interpretation and effect of this
instrument shall be governed by and determined in accordance with the law of the
State of Delaware, without regard to conflicts of law principles.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunder duly authorized and the Grantee has hereunto
set his hand all as of the 12th day of June, 1998.
BRIDGESTREET ACCOMMODATIONS, INC.
By_______________________________
Its
ACCEPTED:
___________________________________
_____________________________, Grantee
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14
Exhibit 10.27(B)
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT between BridgeStreet Accommodations, Inc.,
a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxxxx (the "Grantee")
dated effective as of June 12, 1998 (the "Date of Grant").
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto act and agree as follows:
Section 1. The Plan
The option granted pursuant to this Agreement is not granted pursuant
to the Company's 1997 Equity Incentive Plan, as amended (the "Plan"). This
Agreement shall nevertheless be subject to the terms of the Plan, a copy of
which is attached hereto as Exhibit A and is incorporated herein in its entirety
by this reference, except to the extent this Agreement and the Plan are in
conflict, in which case this Agreement shall control. Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to them in the
Plan.
Section 2. Grant of Option
The Company hereby grants to the Grantee, as of the Date of Grant, an
option (the "Option") to purchase up to one hundred seventy-five thousand
(175,000) shares of Common Stock, par value $.01 per share, of the Company (the
"Option Shares") at a price per share of $7.50, both the price and the number of
shares being subject to adjustment only as provided in the Plan.
Section 3. Terms of Option
Subject to such further limitations as are provided herein, the Option
shall become exercisable as follows:
(i) 87,500 of the Option Shares shall be exercisable on or
after the first anniversary of the Date of Grant;
(ii) 87,500 of the Option Shares shall be exercisable on or
after the second anniversary of the Date of Grant.
The Option and all rights hereunder with respect thereto, to the extent
such rights shall not have been exercised, shall terminate and become null and
void after the close of business on the day that is ten (10) years from the Date
of Grant (the "Option Term").
Section 5. Cessation of Grantee's Employment
(a) If the Grantee ceases to be employed by the Company either by
reason of his or her death or by reason of termination by Grantee without Cause
during the Option Term, the Option shall be exercisable, to the extent the
Option was exercisable at the time of the
15
Grantee's death or termination, as the case may be, either by the Grantee, in
the event of termination, or by the Grantee's executor or administrator or, if
not so exercised, by the legatees or distributees of the Grantee's estate, in
the event of death, in all events only during the one (1) year period
immediately following the Grantee's death or termination, as the case may be,
after which time the Option shall terminate.
(b) If the Grantee ceases to be employed by the Company by reason of a
Change of Control, by termination by the Company without Cause, or by
termination by Grantee for Cause, the Option shall become immediately
exercisable as to all remaining Option Shares by the Grantee only during the one
(1) year period immediately following such cessation or termination, as the case
may be, after which time the Option shall terminate.
(c) Notwithstanding any other provisions set forth herein or in the
Plan, in no event shall the Option be exercised after the expiration of the
Option Term.
(d) Notwithstanding any other provisions set forth herein or in the
Plan, the Option shall terminate automatically and without notice to the Grantee
on the date the Grantee's employment is terminated for "Cause."
(e) For the purposes hereof:
(i) "Cause" shall mean cause as defined in the Employment
Agreement dated June 12, 1998, between the Company and the Grantee, except for a
termination by the Executive for Cause pursuant to Section 13 thereof; and
(ii) "Change of Control" shall mean a merger, consolidation,
tender offer, sale of all or substantially all of the Company's assets or a
comparable transaction in which the holders of the Company's outstanding voting
securities (including other securities convertible or exercisable therefor) as
of immediately prior to such transaction do not hold immediately following such
transaction securities of the surviving or acquiring entity (or the direct or
indirect parent of such entity) entitled to cast a majority of the votes
entitled to be cast for the election of Directors.
Section 6. Exercise of Option
(a) The Grantee may exercise the Option with respect to all or any part
of the number of Option Shares then exercisable hereunder by giving written
notice of election to the Company, attention: Treasurer. Such notice shall
specify the number of Option Shares as to which the Option is to be exercised.
(b) At the time the Option is exercised, the Grantee shall make full
payment for the Option Shares purchased, in cash, certified check or bank
cashier's check, or through the surrender of shares of Common Stock at their
fair market value on the date of exercise or a note pursuant to a cashless
exercise program that the Company shall adopt. The Grantor also shall pay to the
Company or make provision satisfactory to the Company for the payment of
-2-
16
any taxes required by law to be withheld by the Company at the time of the
exercise of the Option or the sale of the Option Shares acquired upon such
exercise.
(c) In the event exercise of the Option shall require the Company to
issue a fractional share of Common Stock of the Company, such fraction shall be
disregarded and the purchase price payable in connection with such exercise
shall be appropriately reduced. Any such fractional share shall be carried
forward and added to any shares covered by future exercise(s) of the Option.
(d) Notwithstanding anything to the contrary contained herein, the
Option shall not be exercisable unless either: (a) a registration statement
under the Securities Act of 1933, as amended (the "Act"), with respect to the
Option Shares shall have become, and continues to be, effective; (b) the Grantee
(i) shall have represented, warranted and agreed, in form and substance
satisfactory to the Company, at the time of exercising the Option, that he or
she is acquiring the Option Shares for his or her own account, for investment
and not with a view to or in connection with any distribution, (ii) shall have
agreed to restrictions on transfer in form and substance satisfactory to the
Company, and (iii) shall have agreed to an endorsement which makes appropriate
reference to such representations, warranties, agreements and restrictions on
the certificate(s) representing the Option Shares; or (c) the Grantee shall have
complied with any other applicable exemption requirement to registration under
the Act. The Company shall use its best efforts to ensure that a registration
statement has become and continues to be effective with respect to the offer and
sale of the Option Shares to the Grantee.
Section 7. No Rights of a Shareholder
Neither the Grantee nor any personal representative shall be, or shall
have any of the rights and privileges of, a shareholder of the Company with
respect to any Option Shares, in whole or in part, prior to the date of exercise
of the Option.
Section 8. Nontransferability of Option
During the Grantee's lifetime, unless otherwise allowed by the Board of
Directors of the Company pursuant to Section 6.3 of the Plan, the Option shall
be exercisable only by the Grantee, and the Option shall not in any event be
transferable except, in case of the death of the Grantee, by will or the laws of
descent and distribution.
Section 9. Employment not Affected
Neither the granting of the Option nor its exercise shall be construed
as granting to the Grantee any right with respect to his or her continued
employment by the Company. Except as may otherwise be limited by a written
agreement between the Company and the Grantee, the right of the Company to
terminate at will the Grantee's employment at any time (whether by dismissal,
discharge, retirement or otherwise) is specifically reserved by the Company.
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17
Section 10. Amendment of Option
The Option may be amended or modified at any time by the Company;
provided, however, that the Grantee's consent to such amendment or modification
shall be required unless the Board of Directors or the Compensation Committee of
the Company determines that the amendment or modification, taking into account
any related action, would not materially and adversely affect the Grantee.
Section 11. Notice
(a) Any notices required or permitted hereunder shall be addressed to
the Company at 00000 Xxxxxxxxxx Xxxx, Xxxxx, Xxxx 00000, Attention: Treasurer,
or to the Grantee at the most current address of the Grantee appearing in the
records of the Company, as the case may be.
(b) Either the Company or the Grantee may, by notice to the other given
in the manner provided in Section 11(a), change his, her or its address for
future notice.
Section 12. Governing Law
The validity, construction, interpretation and effect of this
instrument shall be governed by and determined in accordance with the law of the
State of Delaware, without regard to conflicts of law principles.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunder duly authorized and the Grantee has hereunto
set his hand all as of the 12th day of June, 1998.
BRIDGESTREET ACCOMMODATIONS, INC.
By /s/ Xxxx X. Xxxxxxxx
-------------------------------
Its Chairman of the Board
ACCEPTED:
/s/ Xxxx Xxxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxxx, Grantee
---------------------------------
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18
Exhibit 10.27 (c)
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT between BridgeStreet Accommodations, Inc.,
a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxxxx (the "Grantee")
dated effective as of June 12, 1998 (the "Date of Grant").
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto act and agree as follows:
Section 1. The Plan
The option granted pursuant to this Agreement is not granted pursuant
to the Company's 1997 Equity Incentive Plan, as amended (the "Plan"). This
Agreement shall nevertheless be subject to the terms of the Plan, a copy of
which is attached hereto as Exhibit A and is incorporated herein in its entirety
by this reference, except to the extent this Agreement and the Plan are in
conflict, in which case this Agreement shall control. Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to them in the
Plan.
Section 2. Grant of Option
The Company hereby grants to the Grantee, as of the Date of Grant, an
option (the "Option") to purchase up to one hundred twenty-five thousand
(125,000) shares of Common Stock, par value $.01 per share, of the Company (the
"Option Shares") at a price per share of $7.50, both the price and the number of
shares being subject to adjustment only as provided in the Plan.
Section 3. Terms of Option
(a) Subject to such further limitations as are provided herein, the
Option shall become exercisable in full on the eighth anniversary of the Date of
Grant.
(b) The right to exercise the Option as to one-third (ignoring
fractional shares) of the total number of Option Shares shall be accelerated,
and the Option shall be exercisable as to such number of Option Shares, from and
after the first date the Average Closing Price is at least twice the Base Price.
(c) The right to exercise the Option as to an additional one-third
(ignoring fractional shares) of the total number of Option Shares shall be
accelerated, and the Option shall be exercisable as to such number of Option
Shares from and after the first date the Average Closing Price is at least three
times the Base Price.
(d) The right to exercise the Option as to the remaining Option Shares
shall be accelerated, and the Option shall be exercisable in full, from and
after the first date the Average Closing Price is at least four times the Base
Price.
19
(e) For purposes hereof:
(i) "Average Closing Price" shall mean the average closing price
of a share of Common Stock for ten (10) consecutive trading days on the
principal national securities exchange (including the Nasdaq National
Market) on which the shares of Common Stock are listed or admitted to
trading or, if not listed or admitted to trading on any national
securities exchange (including the Nasdaq National Market), the average
of the bid and asked prices during such ten-day period in the
over-the-counter market as furnished by Nasdaq; provided, however, as
of immediately prior to the consummation of any Change of Control of
the Company the Average Closing Price shall be deemed to be the price
at which the Common Stock is valued in such Change of Control and
provided, further, the Average Closing Price shall be appropriately
adjusted in the event of any stock split, stock dividend or similar
transaction occurring during the period when the Average Closing Price
is being determined;
(ii) "Cause" shall mean "cause" as defined in the Employment
Agreement dated June 12, 1998, between the Company and the Grantee,
except for a termination by the Executive for Cause pursuant to Section
13 thereof.
(iii) "Change of Control" shall mean a merger, consolidation,
tender offer, sale of all or substantially all of the Company's assets
or comparable transaction in which the holders of the Company's
outstanding voting securities (including other securities convertible
or exercisable therefor) as of immediately prior to such transaction do
not hold immediately following such transaction securities of the
surviving or acquiring entity (or the direct or indirect parent of such
entity) entitled to cast a majority of the votes entitled to be cast
for the election of Directors; and
(iv) "Common Stock" shall mean the Company's presently
authorized Common Stock and any stock into or for which such Common
Stock may hereafter be converted or exchanged.
(v) "Base Price" shall mean $4 7/8.
Section 4. Termination of the Option
The Option and all rights hereunder with respect thereto, to the extent
such rights shall not have been exercised, shall terminate and become null and
void after the close of business on the day that is ten (10) years from the Date
of Grant (the "Option Term").
Section 5. Cessation of Grantee's Employment
(a) If the Grantee ceases to be employed by the Company either by
reason of his or her death or by reason of termination by Grantee without Cause
during the Option Term, the
-2-
20
Option shall be exercisable, to the extent the Option was exercisable at the
time of the Grantee's death or termination, as the case may be, either by the
Grantee, in the event of termination, or by the Grantee's executor or
administrator or, if not so exercised, by the legatees or distributees of the
Grantee's estate, in the event of death, in all events only during the one (1)
year period immediately following the Grantee's death or termination, as the
case may be, after which time the Option shall terminate.
(b) If the Grantee ceases to be employed by the Company by reason of a
termination by the Company without Cause or by termination by Grantee for Cause,
the Option shall become immediately exercisable as to all remaining Option
Shares by the Grantee only during the one (1) year period immediately following
such cessation or termination, as the case may be, after which time the Option
shall terminate.
(c) If there is a Change of Control, the Chairman of the Company shall
request that the Board of Directors approve that the Option shall become
immediately exercisable as to all remaining Option Shares by the Grantee only
during the one (1) year period immediately following such Change of Control,
after which time the Option shall terminate.
(d) Notwithstanding any other provisions set forth herein or in the
Plan, in no event shall the Option be exercised after the expiration of the
Option Term.
(e) Notwithstanding any other provisions set forth herein or in the
Plan, the Option shall terminate automatically and without notice to the Grantee
on the date the Grantee's employment is terminated for Cause.
Section 6. Exercise of Option
(a) The Grantee may exercise the Option with respect to all or any part
of the number of Option Shares then exercisable hereunder by giving written
notice of election to the Company, attention: Treasurer. Such notice shall
specify the number of Option Shares as to which the Option is to be exercised.
(b) At the time the Option is exercised, the Grantee shall make full
payment for the Option Shares purchased, in cash, certified check or bank
cashier's check, or through the surrender of shares of Common Stock at their
fair market value on the date of exercise or a note pursuant to any cashless
exercise program that the Company shall adopt. The Grantor also shall pay to the
Company or make provision satisfactory to the Company for the payment of any
taxes required by law to be withheld by the Company at the time of the exercise
of the Option or the sale of the Option Shares acquired upon such exercise.
(c) In the event exercise of the Option shall require the Company to
issue a fractional share of Common Stock of the Company, such fraction shall be
disregarded and the purchase price payable in connection with such exercise
shall be appropriately reduced. Any such
-3-
21
fractional share shall be carried forward and added to any shares covered by
future exercise(s) of the Option.
(d) Notwithstanding anything to the contrary contained herein, the
Option shall not be exercisable unless either (a) a registration statement under
the Securities Act of 1933, as amended (the "Act"), with respect to the Option
Shares shall have become, and continues to be, effective; (b) the Grantee (i)
shall have represented, warranted and agreed, in form and substance satisfactory
to the Company, at the time of exercising the Option, that he or she is
acquiring the Option Shares for his or her own account, for investment and not
with a view to or in connection with any distribution, (ii) shall have agreed to
restrictions on transfer in form and substance satisfactory to the Company, and
(iii) shall have agreed to an endorsement which makes appropriate reference to
such representations, warranties, agreements and restrictions on the
certificate(s) representing the option shares; or (c) the Grantee shall have
complied with any other applicable exemption requirement to registration under
the Act. The Company shall use its best efforts to ensure that a registration
statement has become and continues to be effective with respect to the offer and
sale of the Option Shares to the Grantee.
Section 7. No Rights of a Shareholder
Neither the Grantee nor any personal representative shall be, or shall
have any of the rights and privileges of, a shareholder of the Company with
respect to any Option Shares, in whole or in part, prior to the date of exercise
of the Option.
Section 8. Nontransferability of Option
During the Grantee's lifetime, unless otherwise allowed by the Board of
Directors of the Company pursuant to Section 6.3 of the Plan, the Option shall
be exercisable only by the Grantee, and the Option shall not in any event be
transferable except, in case of the death of the Grantee, by will or the laws of
descent and distribution.
Section 9. Employment not Affected
Neither the granting of the Option nor its exercise shall be construed
as granting to the Grantee any right with respect to his or her continued
employment by the Company. Except as may otherwise be limited by a written
agreement between the Company and the Grantee, the right of the Company to
terminate at will the Grantee's employment at any time (whether by dismissal,
discharge, retirement or otherwise) is specifically reserved by the Company.
Section 10. Amendment of Option
The Option may be amended or modified at any time by the Company;
provided, however, that the Grantee's consent to such amendment or modification
shall be required unless the Board of Directors or the Compensation Committee of
the Company determines that
-4-
22
the amendment or modification, taking into account any related action, would not
materially and adversely affect the Grantee.
Section 11. Notice
(a) Any notices required or permitted hereunder shall be addressed to
the Company at 00000 Xxxxxxxxxx Xxxx, Xxxxx, Xxxx 00000, Attention: Treasurer,
or to the Grantee at the most current address of the Grantee appearing in the
records of the Company, as the case may be.
(b) Either the Company or the Grantee may, by notice to the other given
in the manner provided in Section 11(a), change his, her or its address for
future notice.
Section 12. Governing Law
The validity, construction, interpretation and effect of this
instrument shall be governed by and determined in accordance with the law of the
State of Delaware, without regard to conflicts of law principles.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunder duly authorized and the Grantee has hereunto
set his hand all as of the 12th day of June, 1998.
BRIDGESTREET ACCOMMODATIONS, INC.
By /s/ Xxxx X. Xxxxxxxx
-------------------------------
Its Chairman of the Board
ACCEPTED:
/s/ Xxxx Xxxxxxxxx
----------------------------------
Xxxx X. Xxxxxxxxx, Grantee
---------------------------------
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