EXHIBIT 10.23
CHANGE IN CONTROL AND TERMINATION AGREEMENT
THIS CHANGE IN CONTROL AND TERMINATION AGREEMENT (the
"Agreement"), to be effective as of the 3rd day of December, 2001, is made and
entered into by and between EQUITY INNS SERVICES, INC. (the "Company"), a
corporation organized and existing under the laws of the State of Tennessee,
EQUITY INNS, INC. (the "Parent"), a corporation organized and existing under the
laws of the State of Tennessee, and XXXXXXX X. XXXXXXXX (the "Executive").
R E C I T A L S:
The Company provides management services to the Parent
pursuant to a management services agreement dated as of December 30, 1994.
The Company and the Parent acknowledge that Executive's
contributions to the past and future growth and success of the Company and the
Parent have been and will continue to be substantial. As a wholly-owned
subsidiary of a publicly held corporation, the Company recognizes that there
exists a possibility of a Change in Control (as defined herein) of the Company
or its Parent. The Company and the Parent also recognize that the possibility of
such a Change in Control may contribute to uncertainty on the part of senior
management and may result in the departure or distraction of senior management
from their operating responsibilities.
Outstanding management of the Company is always essential to
advancing the best interests of the Company's and the Parent's shareholders. In
the event of a threat or occurrence of a bid to acquire or change control of the
Parent or to effect a business combination, it is particularly important that
the Company's and the Parent's businesses be continued with a minimum of
disruption. The Company and the Parent believe that the objective of securing
and retaining outstanding management will be achieved if the Company's key
management employees are given assurances of employment security so they will
not be distracted by personal uncertainties and risks created by such
circumstances.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations herein and the compensation the Parent and the Company, jointly and
severally, agree herein to pay to the Executive, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parent, the Company and the Executive agree as follows:
ARTICLE 1. TERM; CERTAIN DEFINITIONS.
1.1 Term. This Agreement is effective from the date of its
execution by the Company ("Effective Date") for a term of three years (the
"Initial Term"). This Agreement automatically continues in effect from year to
year after expiration of the Initial Term unless the Company notifies the
Executive in writing ninety (90) days before any anniversary of the Effective
Date following the Initial Term that the Agreement will terminate as of that
anniversary date. Notwithstanding the foregoing, no notice of termination of
this Agreement under the preceding sentence shall be effective during an
1
Employment Period as defined in section 2.1 below.
1.2 Certain Definitions. As used in this Agreement:
(a) Acquiring Person means that a Person, considered
alone or together with all Control Affiliates and Associates
of that Person, is or becomes directly or indirectly the
beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of securities representing at least twenty percent (20%)
of (i) the Parent's then outstanding securities entitled to
vote generally in the election of the Parent's Board; or (ii)
the Company's then outstanding securities entitled to vote
generally in the election of the Company's Board.
(b) Annual Base Salary means the Executive's gross
annual salary before any taxes, deductions, exclusions or any
deferrals or contributions under any plan or program of the
Company or the Parent, but excluding bonuses, incentive
compensation, employee benefits or any non-salary form of
compensation (determined without regard to any reduction in
Annual Base Salary that results in Executive's voluntary
termination with Good Reason, under sections 1.2(n) and 2.3).
(c) Associate, with respect to any Person, is defined
in Rule 12b-2 under the Exchange Act; provided, however, that
an Associate shall not include the Parent or a majority-owned
subsidiary of the Parent.
(d) Bonus means the Executive's bonus or other
similar payment from the Company or the Parent, whether paid
in cash or shares of the Parent's common stock or otherwise,
that is based on the performance of the Company, the Parent,
or the Executive during a fiscal year or years, even if paid
after the close of the fiscal year. The term "Bonus" shall
include, without limitation, for 1996, restricted stock awards
granted in 1996 in lieu of amounts paid under the bonus pool
(which awards shall be deemed to have a value, solely for this
purpose, equal to the Fair Market Value on the date of grant
of all shares subject to the award, whether or not such shares
were vested on the date of grant); and for 1997, amounts paid
under the Company's annual bonus pool. Notwithstanding the
foregoing, for purposes of calculating Base Period Income
under section 2.5, the figure used as a Bonus (or projected
Bonus, for purposes of section 2.5(b)(ii)) for any fiscal year
shall be the greater of (i) the actual Bonus paid (or
projected, for purposes of section 2.5(b)(ii)) for that year,
or (ii) the Bonus that would have been paid if (A) reductions
that would permit a termination with Good Reason had not
occurred, and (B) the discretionary portion of the Bonus was
paid at the higher of "target" or actual levels.
(e) "Cause," means (i) willful, deliberate and
continued failure by the Executive (other than for reason of
mental or physical illness or Disability) to perform his
duties as established by the Company's Board, or fraud or
dishonesty in connection with such duties, in either case, if
such conduct has a materially detrimental effect on the
2
business operations of the Company; (ii) a material breach by
the Executive of his fiduciary duties of loyalty or care to
the Company or the Parent; (iii) conviction of any crime (or
upon entering a plea of guilty or nolo contendere to a charge
of any crime) constituting a felony; (iv) misappropriation of
funds or property; or (v) willful, flagrant, deliberate and
repeated infractions of material published policies and
regulations of the Company of which the Executive has actual
knowledge.
(f) Change in Control means (i) a Person is or
becomes an Acquiring Person; (ii) holders of the securities of
the Parent entitled to vote thereon approve any agreement with
a Person (or, if such approval is not required by applicable
law and is not solicited by the Parent, the closing of such an
agreement) that involves the transfer of at least fifty
percent (50%) of the Parent's and its subsidiaries' total
assets on a consolidated basis, as reported in the Parent's
consolidated financial statements filed with the Securities
and Exchange Commission; (iii) holders of the securities of
the Parent entitled to vote thereon approve a transaction (or,
if such approval is not required by applicable law and is not
solicited by the Parent, the closing of such a transaction)
pursuant to which the Parent will undergo a merger,
consolidation, or statutory share exchange with a Person,
regardless of whether the Parent is intended to be the
surviving or resulting entity after the merger, consolidation,
or statutory share exchange, other than a transaction that
results in the voting securities of the Parent carrying the
right to vote in elections of persons to the Parent's Board
outstanding immediately prior to the closing of the
transaction continuing to represent (either by remaining
outstanding or by being converted into voting securities of
the surviving entity) at least 66 2/3% (sixty-six and
two-thirds percent) of the Parent's voting securities carrying
the right to vote in elections of persons to the Parent's
Board, or such securities of such surviving entity,
outstanding immediately after the closing of such transaction;
(iv) the Continuing Directors cease for any reason to
constitute a majority of the Parent's Board; (v) holders of
the securities of the Parent entitled to vote thereon approve
a plan of complete liquidation of the Parent or an agreement
for the sale or liquidation by the Parent or its subsidiaries
of substantially all of the assets of the Parent and its
subsidiaries (or, if such approval is not required by
applicable law and is not solicited by the Parent, the
commencement of actions constituting such a plan or the
closing of such an agreement); or (vi) the Parent's Board
adopts a resolution to the effect that, in its judgment, as a
consequence of any one or more transactions or events or
series of transactions or events, a Change in Control of the
Company or the Parent has effectively occurred. The Parent's
Board shall be entitled to exercise its sole and absolute
discretion in adopting any such resolution pursuant to
subparagraph (vi) above and in determining whether or not any
such transaction(s) or event(s) might be deemed, individually
or collectively, to constitute a Change in Control of the
Company or the Parent.
(g) Company's Board means the Board of Directors of
the Company.
3
(h) Continuing Director means any member of the
Parent's Board, while a member of the Parent's Board and (i)
who was a member of the Parent's Board on the date hereof or
(ii) whose nomination for or election to the Parent's Board
was recommended or approved by a majority of the Continuing
Directors.
(i) Control Affiliate, with respect to any Person,
means an affiliate as defined in Rule 12b-2 under the Exchange
Act.
(j) Control Change Date means the date on which a
Change in Control occurs. If a Change in Control occurs on
account of a series of transactions, the "Control Change Date"
is the date of the last of such transactions.
(k) Disability means a complete physical or mental
inability, confirmed by an independent licensed physician, to
perform substantially all of the services required of an
employee in Executive's position with the Company immediately
before Executive first became unable to perform those
services, that continues for a period of two hundred forty
(240) consecutive days, provided that the Company has given
advance written notice to Executive of its determination of
such Disability, and Executive has not resumed performance of
such services within thirty (30) days of such notice.
(l) Exchange Act means the Securities Exchange Act of
1934, as amended.
(m) Fair Market Value has the same meaning given that
term in the Parent's 1994 Stock Incentive Plan, as amended and
in effect from time to time.
(n) Good Reason means the Executive's resignation
from the Company's employment on account of one or more of the
following events:
(i) the failure by the Parent's Board or the
Company's Board (as applicable) to reelect the Executive to
Executive's current position with the Company and the Parent
(as of the Control Change Date), provided the Executive elects
to leave the Company's or Parent's employment within six (6)
months of such failure to so reelect or reappoint the
Executive;
(ii) a material diminution by the Parent's
Board or the Company's Board (as applicable) of the duties,
functions and responsibilities of the Executive as the Vice
President-Asset Management of the Company/Vice President-Asset
Management of the Parent without his consent within six (6)
months of such diminution of duties, responsibilities or
functions; or
(iii) the failure of the Company or the
Parent to permit the Executive to exercise such
responsibilities as are consistent with the Executive's
4
position and are of such a nature as are usually associated
with such offices of a corporation engaged in substantially
the same business as the Company or the Parent;
(iv) the Company's or the Parent's causing
the Executive to relocate his employment more than fifty (50)
miles from Memphis, Tennessee, without the consent of the
Executive;
(v) the Parent's or the Company's failure
to make (or the Parent's failure to cause the Company to make)
a payment when due to the Executive;
(vi) the Company's reduction, during the
Employment Period, of the Executive's (A) Annual Base Salary,
as such may be increased from time to time after the date of
this Agreement; (B) Bonus, such that the aggregate threshold,
target, or maximum Bonus projected for Executive for a fiscal
year are lower than the greater of (1) the aggregate
threshold, target, or maximum Bonus, respectively, projected
for the Executive for the immediately preceding fiscal year or
(2) the aggregate threshold, target, or maximum Bonus,
respectively, projected most recently prior to the Employment
Period for the Executive; or (C) employee welfare, fringe or
pension benefits, other than reductions determined to be
necessary to comply with the Employee Retirement Income
Security Act of 1974, as amended, or to retain the tax-
qualified or tax-favored status of the benefit under the Code,
which determination shall be made by the Parent's Board in
good faith. For purposes of section 1.2(vi)(C), awards under
the 1994 Plan, and other compensatory awards granted with
respect to the Parent's capital stock under any other plan or
outside of a plan, shall not be considered "employee benefits"
and shall be subject to reduction except to the extent those
awards are otherwise subject to restrictions on reductions in
Bonus levels under section 1.2(vi)(B); or
(vii) the Company, the Company's Board, the
Parent or the Parent's Board directs Executive to engage in
unlawful or unethical conduct or conduct contrary to the
Company's or the Parent's good business practices.
(o) Parent's Board means the Board of Directors of
the Parent.
(p) Person means any human being, firm, corporation,
partnership, or other entity. "Person" also includes any human
being, firm, corporation, partnership, or other entity as
defined in sections 13(d)(3) and 14(d)(2) of the Exchange Act.
The term "Person" does not include the Company, the Parent or
any Related Entity, and the term Person does not include any
employee-benefit plan maintained by the Parent, the Company or
any Related Entity, and any person or entity organized,
appointed, or established by the Parent, the Company or any
Related Entity for or pursuant to the terms of any such
employee-benefit plan, unless the Parent's Board or the
Company's Board determines that such an employee-benefit plan
or such person or
5
entity is a "Person".
(q) Potential Change in Control means that (i) the
Parent's Board approves a transaction or series of
transactions that, if consummated, would result in a Change in
Control; (ii) any Person, the Company, or the Parent makes a
public announcement of its intention to take or consider
taking actions that would result in a Change in Control; (iii)
any Person initiates a tender offer which, if consummated,
would result in a Change in Control; or (iv) the Parent's
Board adopts a resolution to the effect that, in its judgment,
as a consequence of any one or more transactions or events or
series of transactions or events, a Potential Change in
Control of the Company or the Parent has effectively occurred.
The Parent's Board shall be entitled to exercise its sole and
absolute discretion in adopting any such resolution pursuant
to subparagraph (iv) above and in determining whether or not
any such transaction(s) or event(s) might be deemed,
individually or collectively, to constitute a Potential Change
in Control of the Company or the Parent.
(r) Related Entity means any entity that is part of a
controlled group of corporations or is under common control
with the Parent within the meaning of section 1563(a), 414(b)
or 414(c) of the Internal Revenue Code of 1986, as amended
(the "Code").
ARTICLE 2. TERMINATION OF EMPLOYMENT.
2.1 General. Executive is entitled to receive a Termination
Payment according to the remaining provisions of this Article 2 if Executive's
employment with the Company terminates during the term of this Agreement and
during an Employment Period (as defined below) because of an event described in
either section 2.2 or 2.3. An Employment Period begins on the occurrence of any
Potential Change in Control. An Employment Period also begins on the occurrence
of a Control Change Date if, with respect to the Change in Control to which such
Control Change Date relates, no Potential Change in Control occurred (or a
Potential Change in Control did occur, but it was determined by the Parent's
Board to have been unwound, reversed or concluded (as provided in the following
sentence)). If an Employment Period begins on the occurrence of a Potential
Change in Control, it will end on the earlier of (i) the date (if any) that the
events constituting the Potential Change in Control have been unwound, reversed
or concluded such that the events are no longer expected to result in a Change
in Control, as determined by the Parent's Board in good faith, or (ii) eighteen
(18) months following the Control Change Date to which the Potential Change of
Control relates. If an Employment Period begins on a Control Change Date, it
will end eighteen (18) months following the Control Change Date. If Executive's
employment terminates during an Employment Period and an event described in
section 2.2 or 2.3 has not occurred, or Executive's employment terminates as a
result of his death or Disability, this Agreement terminates.
2.2 Termination by the Company. Executive is entitled to
receive a Termination Payment if Executive's employment is terminated by the
Company during an Employment Period without Cause. If the Company desires to
6
discharge the Executive for Cause (the "Cause Exception"), it shall give notice
to the Executive as provided in section 2.7 and the Executive shall have thirty
(30) days after notice has been given to him in which to cure the reason for the
Company's exercise of the Cause Exception. If the reason for the Company's
exercise of the Cause Exception is timely cured by the Executive (as determined
by a majority of the members of the Company's Board following a hearing), the
Company's notice of discharge shall become null and void.
2.3 Voluntary Termination. Executive is entitled to receive
a Termination Payment if Executive voluntarily terminates employment during an
Employment Period with Good Reason.
2.4 Termination Payment. The Parent shall pay or shall cause
the Company to pay a Termination Payment equal to two (2) times Executive's Base
Period Income (as determined under section 2.5) in a single sum payment, net of
any required tax withholding, in cash. The Termination Payment to Executive
shall be made not later than the thirtieth (30th) business day after Executive's
employment termination in accordance with section 2.2 or 2.3 (the "Payment
Date"). Notwithstanding the foregoing, if the amount of the Termination Payment
cannot be finally determined on or before the Payment Date, the Parent shall pay
or shall cause the Company to pay on the Payment Date an estimate, as determined
in good faith by the Company, of the minimum amount of the Termination Payment.
Any portion of the Termination Payment that is not made on the Payment Date
shall bear interest at a rate equal to one-hundred twenty (120) percent of the
monthly compounded applicable federal rate, as in effect under section 1274(d)
of the Code for the month in which the Payment Date occurs. In the event that
the amount of the estimated payment exceeds the amount subsequently determined
to have been due, such excess shall constitute a loan by the payor, payable on
the fifth day after demand by the Parent or the Company, as applicable, with
interest at the rate provided under section 1274(d) of the Code until paid.
2.5 Base Period Income. Base Period Income for the Executive
equals the sum of (a) and (b), as determined below:
(a) Average Annual Base Salary, determined as follows:
(i) twelve times: (A) the monthly rate of Annual Base
Salary to which the Executive is entitled on the day
prior to his termination (the "Salary Measurement
Date"); plus (B) the monthly rate of Annual Base
Salary to which the Executive was entitled twelve
months prior to the Salary Measurement Date, if
Executive was employed by the Company or the Parent
on that date; plus (C) the monthly rate of Annual
Base Salary to which the Executive was entitled
twenty-four months prior to the Salary Measurement
Date, if Executive was employed by the Company or the
Parent on that date (with Annual Base Salary
determined in each case in accordance with section
1.2(b));
7
(ii) divided by: (A) one, if Executive was not
employed by the Company or the Parent twelve months
prior to the Salary Measurement Date; (B) two, if
Executive was employed by the Company or the Parent
twelve months (but not twenty-four months) prior to
the Salary Measurement Date; or (C) three, if
Executive was employed by the Company twenty-four
months prior to the Salary Measurement Date;
plus
(b) Average Bonus, determined as either:
(i) the sum of the Bonuses paid to or earned by the
Executive for the three fiscal years immediately
preceding the year in which the Executive's
employment with the Company terminates, divided by
the number of such fiscal years for which a Bonus was
paid to or earned by the Executive; provided that if
the Executive was paid or earned a Bonus for any
fiscal year that was pro rated based on partial
year's employment, such Bonus shall be annualized for
purposes of calculating Base Period Income; or
(ii) if Executive earned no Bonus for any fiscal year
prior to the year in which his employment with the
Company terminates, his "target" Bonus for the fiscal
year in which his employment with the Company
terminates shall be his Average Bonus for purposes of
calculating Base Period Income.
All Bonuses shall be determined in accordance with
section 1.2(d), including provisions that specify an
amount to be used in lieu of the Bonus actually paid
or projected for a fiscal year. The provisions of
this section 2.5(b) and section 1.2(d) are
illustrated by the following examples:
Example. Assume a Potential Change in Control occurs
(and thus an Employment Period begins) in December,
1998, and Executive's employment is terminated
without Cause in January, 1999. For purposes of
calculating Executive's Base Period Income,
Executive's Bonuses for the years 1996, 1997 and 1998
would be averaged. Assume that Executive received
7,500 shares of restricted stock in December, 1996 in
lieu of a payment under the bonus pool, and that the
Fair Market Value of the shares on date the shares
were issued was $13.50. Further assume that Executive
received a payment under the bonus pool for 1997,
taken part in cash ($150,000) and part in shares of
Common Stock (7,500 shares, with a Fair Market Value
on the date the shares were issued of $14.00 per
share). Finally, assume that (i) Executive's 1998
Bonus performance measures, as established by the
Compensation Committee of the Parent's Board, had a
"corporate" and an "individual" component, (ii)
Executive's Bonus would be $275,000, if the
8
"target" Bonus was paid for both the corporate and
individual components of the award, and (iii) the
target Bonus was earned for both components of the
award.
Executive's average Bonus, for purposes of
calculating his Base Period Income would be
$210,416.67 ([$101,250 for 1996 + $255,000 ($150,000
+ $105,000) for 1997 + $275,000 for 1998] / 3).
Example. Assume the same "target" Bonus levels for
1998 as set forth above. Further assume that (i) a
Potential Change in Control occurs (and, thus, the
Employment Period begins) in January, 1999; (ii) each
of the Bonus projections subsequently established by
the Compensation Committee for the 1999 fiscal year
are set at a level lower than the corresponding Bonus
level projections for 1998; and (iii) Executive's
employment is terminated without Cause in January,
1999. Finally, assume that (i) corporate performance
for fiscal 1999 met "target" levels of achievement;
and (ii) the Compensation Committee determined that
the individual component of the Bonus for 1999 would
be paid at "target" levels. Executive's average
Bonus, for purposes of calculating his Base Period
Income would be $268,333.34 ([$255,000 for 1997 +
$275,000 for 1998 + $275,000 for 1999]). Note that
"target" levels for both the corporate and individual
component as established for 1998 are used to
calculate the average Bonus, because the "target"
levels established for 1999 were lower than "target"
levels established for 1998 - and would have
permitted a termination for Good Reason.
2.6 Other Severance Benefits. In the event Executive is
entitled to a Termination Payment under section 2.4, he shall also be entitled
to the following benefits and other rights:
(a) Accrued but unpaid Annual Base Salary through the
date that Executive's employment terminates, which the Parent
shall pay or cause the Company to pay no later than the
Payment Date (as defined in section 2.4);
(b) Payment of a Bonus for the fiscal year in which
Executive's employment terminates, pro rated based on the
number of days of such year prior to the date of Executive's
termination, with such Bonus being calculated as a pro rated
portion of the "target" Bonus projected for Executive for that
year (determined without regard to any reduction that results
in Executive's termination with Good Reason), which the Parent
shall pay or cause the Company to pay no later than the
Payment Date;
(c) Payment of any unpaid Bonus for any fiscal year
prior to the year in which Executive's employment terminates
with any discretionary portion of the Bonus being paid at
"target" levels or higher for such year and any
non-discretionary portion of the Bonus being paid based on
9
actual levels of corporate achievement (each determined
without regard to any reduction that results in Executive's
termination with Good Reason), which the Parent shall pay or
cause the Company to pay no later than the Payment Date;
(d) Forgiveness of all loans made to Executive by the
Company or the Parent and outstanding as of the date of
Executive's termination of employment with the Company (other
than the loan deemed made by the Company to Executive in
accordance with the last sentence of section 2.4 or section
3.3);
(e) Accelerated vesting, settlement, or
exercisability of (i) awards outstanding under the Parent's
1994 Stock Incentive Plan; (ii) compensatory awards granted
with respect to the Parent's capital stock under any other
plan or outside of a plan (in each case, including without
limitation restricted stock awards, performance shares and
stock options); (iii) Executive's balance under the Parent's
Deferred Compensation Plan; and (iv) benefits under any other
non-tax-qualified plan of the Company or the Parent in which a
portion of an award or benefit would be lost through
termination of employment; provided that, in each case, such
acceleration shall occur as of the date of Executive's
termination of employment (if such acceleration has not
previously occurred);
(f) A payment equal to the portion of Executive's
account balance under any defined contribution tax-qualified
pension plan of the Company or the Parent forfeited as a
result of failure to satisfy vesting requirements due to
Executive's termination of employment, which the Parent shall
pay or cause the Company to pay no later than the Payment
Date;
(g) Continuation, for the longer of eighteen (18)
months following the date of termination of employment, or the
period mandated, in the case of group health plan coverage, by
the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended, of all of Executive's insurance benefits (including
without limitation medical, dental, and vision insurance
benefits) and any other medical, dental or vision benefits (if
not insured) on the same terms as in effect immediately prior
to Executive's termination (determined without regard to any
reduction that results in Executive's termination with Good
Reason); provided that any such benefits in effect immediately
prior to Executive's termination shall be made available to
the Executive for the period stated above even if they must be
secured by the Company or the Parent outside of any plan or
group insurance policy; and
(h) Any other benefits accrued by the Executive as of
the date of his termination of employment, including without
limitation accrued vacation, in accordance with the terms of
the plan, agreement or other arrangement under which the
benefit was established, which the Parent shall pay or cause
the Company to pay no later than the Payment Date.
10
2.7 Notice of Termination. Any termination by the Company
under the Cause Exception or by the Executive for Good Reason shall be
communicated by Notice of Termination to the other party hereto. For purposes of
sections 2.2, 2.3 and 2.4, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provision so indicated and (iii) if the termination date is other than the date
of receipt of such notice, specifies the effective date of termination.
ARTICLE 3. TAX MATTERS.
3.1 Indemnification. If the excise tax on "excess parachute
payments," as defined in section 280G of the Code, will be imposed on the
Executive under Code section 4999 as a result of the Executive's receipt of the
Termination Payment or any other payment, benefit or compensation (without
regard to the "Additional Amount" described below) which the Executive receives
or has the right to receive from the Company or the Parent or any of their
affiliates (the "Change in Control Benefits"), the Company and the Parent shall
indemnify the Executive and hold him harmless against all claims, losses,
damages, penalties, expenses, and excise taxes. To effect this indemnification,
the Parent shall pay or cause the Company to pay to the Executive the
"Additional Amount" described in this section 3.1. The Additional Amount shall
be the amount that is sufficient to indemnify and hold the Executive harmless
from the application of Code sections 280G and 4999, including the amount of (i)
the excise tax that will be imposed on the Executive under section 4999 of the
Code with respect to the Change in Control Benefits; (ii) the additional (A)
excise tax under section 4999 of the Code, (B) hospital insurance tax under
section 3111(b) of the Code and (C) federal, state and local income taxes for
which the Executive is or will be liable on account of the payment of the amount
described in item (i); and (iii) the further excise, hospital insurance and
income taxes for which the Executive is or will be liable on account of the
payment of the amount described in item (ii) and this item (iii) and any other
indemnification payment under this section 3.1. The Additional Amount shall be
calculated and paid to the Executive at the time that the Termination Payment is
paid to the Executive. In calculating the Additional Amount, the highest
marginal rates of federal and applicable state and local income taxes applicable
to individuals and in effect for the year in which the Change in Control occurs
shall be used. Nothing in this paragraph shall give the Executive the right to
receive indemnification from the Company or the Parent for federal, state or
local income taxes or hospital insurance taxes payable solely as a result of the
Executive's receipt of (a) the Termination Payment, or (b) any additional
payment, benefit or compensation other than additional compensation in the form
of the excise tax payment specified in item (i), above. As specified in items
(ii) and (iii), above, all income, hospital insurance and additional excise
taxes resulting from additional compensation in the form of the excise tax
payment specified in item (i), above, shall be paid to the Executive.
3.2 Example. The provisions of section 3.1 are illustrated
by the following example:
11
Assume that the Termination Payment and all other Change in
Control Benefits result in a total federal, state and local income tax and
hospital insurance tax liability of $180,000; and an excise tax liability under
Code section 4999 of $70,000. Under such circumstances, the Executive is solely
responsible for the $180,000 income and hospital insurance tax liability; and
the Parent must pay or cause the Company to pay to the Executive $70,000, plus
an amount necessary to indemnify the Executive for all federal, state and local
income taxes, hospital insurance taxes, and excise taxes that will result from
the $70,000 payment to the Executive and from all further indemnification to the
Executive of taxes attributable to the initial $70,000 payment.
3.3 Estimated Payment. Notwithstanding the foregoing, if the
Additional Amount cannot be finally determined on or before the Payment Date (as
defined in section 2.4), the Parent shall pay or cause the Company to pay on the
Payment Date an estimate, as determined in good faith by the Company, of the
minimum amount of the Additional Amount. Any portion of the Additional Amount
that is not made on the Payment Date shall bear interest at a rate equal to
one-hundred twenty (120) percent of the monthly compounded applicable federal
rate, as in effect under section 1274(d) of the Code for the month in which the
Payment Date occurs. In the event that the amount of the estimated payment
exceeds the amount subsequently determined to have been due, such excess shall
constitute a loan by the payor, payable on the fifth day after demand by the
Parent or the Company, as applicable, with interest at the rate provided under
section 1274(d) of the Code until paid.
ARTICLE 4. MITIGATION. The Executive shall not be required to
mitigate damages or the amount of any payment provided for under this Agreement
by seeking or accepting other employment or otherwise, and compensation earned
from such employment or otherwise shall not reduce the amounts otherwise payable
under this Agreement.
ARTICLE 5. RESTRICTION ON CONDUCT OF EXECUTIVE.
5.1 General. The Executive and the Company understand and
agree that the purpose of the provisions of this Article 5 is to protect
legitimate business interests of the Company and Parent, as more fully described
below, and is not intended to impair or infringe upon the Executive's right to
work, earn a living, or acquire and possess property from the fruits of his
labor. The Executive hereby acknowledges that the post-employment restrictions
set forth in this Article 5 are reasonable and that they do not, and will not,
unduly impair his ability to earn a living after the termination of his
employment with the Company. Therefore, subject to the limitations of
reasonableness imposed by law upon restrictions set forth herein, Executive
shall be subject to the restrictions set forth in this Article 5.
5.2 Definitions. The following capitalized terms used in this
Article 5 shall have the meanings assigned to them below, which definitions
shall apply to both the singular and the plural forms of such terms:
(a) Confidential Information means any confidential
or proprietary information possessed by the Company, the
12
Parent or a Related Entity, including without limitation, any
confidential "know-how", customer lists, details of client or
consultant contracts, current and anticipated customer
requirements, pricing policies, price lists, market studies,
business plans, operational methods, marketing plans or
strategies, product development techniques or plans, computer
software programs (including object code and source code),
data and documentation, data base technologies, systems,
structures and architectures, inventions and ideas, past,
current and planned research and development, acquisition
plans, new personnel acquisition plans and any other
information that would constitute a trade secret under common
law or the laws of the State of Tennessee.
(b) Determination Date means the date of termination
of Executive's employment with the Company for any reason
whatsoever or any earlier date (during the Restricted Period)
of an alleged breach of the Restrictive Covenants by the
Executive.
(c) Principal or Representative means a principal,
owner, partner, shareholder, joint venturer, member, trustee,
director, officer, manager, employee, agent, representative or
consultant.
(d) Protected Employees means employees of the
Company, the Parent, or a Related Entity who were employed by
the Company, the Parent or a Related Entity at any time within
six (6) months prior to the Determination Date.
(e) Restricted Period means the period of Executive's
employment with the Company plus a period extending two (2)
years from the date of termination of employment.
(f) Restrictive Covenants means the restrictive
covenants contained in sections 5.3, 5.4, and 5.5 hereof.
5.3 Restriction on Disclosure and Use of Confidential
Information. Executive understands and agrees that the Confidential Information
constitutes a valuable asset of the Company and the Parent, and may not be
converted to Executive's own use. Accordingly, Executive hereby agrees that
Executive shall not, directly or indirectly, at any time during the Restricted
Period reveal, divulge or disclose to any Person not expressly authorized by the
Company or the Parent any Confidential Information, and Executive shall not,
directly or indirectly, at any time during the Restricted Period use or make use
of any Confidential Information in connection with any business activity other
than that of the Company, the Parent or a Related Entity and, upon request by
the Company or the Parent, shall return all copies of any Confidential
Information then in the Executive's possession as of the date of termination of
his employment. The parties acknowledge and agree that this Agreement is not
intended to be, and does not, alter either the Company's rights or the
Executive's obligations under any state or federal statutory or common law
regarding trade secrets and unfair trade practices.
13
5.4 Nonsolicitation of Protected Employees. Executive
understands and agrees that the relationship between the Company, the Parent, or
a Related Entity and each of the Protected Employees constitutes a valuable
asset of the Company or the Parent and may not be converted for Executive's own
use. Accordingly, Executive hereby agrees that during the Restricted Period,
Executive shall not directly or indirectly on Executive's own behalf or as a
Principal or Representative of any Person solicit any Protected Employee to
terminate his or her employment with the Company, the Parent, or a Related
Entity.
5.5 Noninterference with Company and Parent Opportunities.
Executive understands and agrees that all hotel development opportunities with
which he is involved during his employment with the Company constitute valuable
assets of the Company and the Parent and may not be converted to Executive's own
use. Accordingly, Executive hereby agrees that during the Restricted Period,
Executive shall not directly or indirectly on Executive's own behalf or as a
Principal or Representative of any Person, interfere with, solicit, pursue, or
in any way make use of the Company's or the Parent's hotel development
opportunities.
5.6 Exceptions from Disclosure Restrictions. Anything herein
to the contrary notwithstanding, Executive shall not be restricted from
disclosing or using Confidential Information that: (i) is or becomes generally
available to the public other than as a result of an unauthorized disclosure by
Executive or his agent; (ii) becomes available to Executive other than through
his employment by the Company and the Parent and in a manner that is not in
contravention of applicable law from a source (other than the Company, the
Parent, or a Related Entity or one of their officers, employees, agents or
representatives) that is not bound by a confidential relationship with the
Company, the Parent or a Related Entity or by a confidentiality or similar
agreement; (iii) was known to the Executive on a non-confidential basis and not
in contravention of applicable law or a confidentiality or other similar
agreement before its disclosure to Executive by the Company, the Parent, or a
Related Entity or one of their officers, employees, agents or representatives;
or (iv) is required to be disclosed by law, court order or other legal process;
provided, however, that in the event disclosure is required by law, Executive
shall provide the Company with prompt notice of such requirement so that the
Company or the Parent may seek an appropriate protective order prior to such
required disclosure by Executive.
5.7 Enforcement of Covenants.
(a) Rights and Remedies upon Breach. In the event
Executive breaches, or threatens to commit a breach of, any of
the provisions of the Restrictive Covenants, the Company and
the Parent shall each have the right and remedy to enjoin,
preliminarily and permanently, Executive from violating or
threatening to violate the Restrictive Covenants and to have
the Restrictive Covenants specifically enforced by any court
of competent jurisdiction, it being agreed that any breach or
threatened breach of the Restrictive Covenants would cause
irreparable injury to the Company and the Parent and that
14
money damages would not provide an adequate remedy to the
Company or the Parent. The rights referred to in the preceding
sentence shall be independent of any others and severally
enforceable, and shall be in addition to, and not in lieu of,
any other rights and remedies available to the Company or the
Parent at law or in equity.
(b) Acknowledgement. The Executive acknowledges
and agrees that the Restrictive Covenants are reasonable and valid in time and
space and in all other respects, and that they will be interpreted in accordance
with Article 10.
ARTICLE 6. ATTORNEYS' FEES. In the event that the Executive
incurs any attorneys' fees in protecting or enforcing his rights under this
Agreement, the Parent shall reimburse or cause the Company to reimburse the
Executive for such reasonable attorneys' fees and for any other reasonable
expenses related thereto. Such reimbursement shall be made within thirty (30)
days following final resolution of the dispute or occurrence giving rise to such
fees and expenses.
ARTICLE 7. DECISIONS BY COMPANY OR PARENT; FACILITY OF
PAYMENT. Any powers granted to the Company's Board or the Parent's Board (as
applicable) hereunder may be exercised by a committee, appointed by either such
Board, and such committee, if appointed, shall have general responsibility for
the administration and interpretation of this Agreement. If such Board or
committee shall find that any person to whom any amount is or was payable
hereunder is unable to care for his affairs because of illness or accident, or
has died, then such Board or committee, if it so elects, may direct that any
payment due him or his estate (unless a prior claim therefore has been made by a
duly appointed legal representative) or any part thereof be paid or applied for
the benefit of such person or to or for the benefit of his spouse, children or
other dependents, an institution maintaining or having custody of such person,
any other person deemed by such Board or committee to be a proper recipient on
behalf of such person otherwise entitled to payment, or any of them, in such
manner and proportion as such Board or committee may deem proper. Any such
payment shall be in complete discharge of the liability of the Company and the
Parent therefore.
ARTICLE 8. INDEMNIFICATION. The Company shall indemnify the
Executive during his employment and thereafter to the maximum extent permitted
by applicable law for any and all liability of the Executive arising out of, or
in connection with, his employment by the Company or the Parent or membership on
the Company's Board or the Parent's Board (as applicable); provided, that in no
event shall such indemnity of the Executive at any time during the period of his
employment by the Company be less than the maximum indemnity provided by the
Company or the Parent at any time during such period to any other officer or
director under an indemnification insurance policy or the bylaws or charter of
the Company or the Parent or by agreement.
ARTICLE 9. SOURCE OF PAYMENTS; NO TRUST. The obligations of
the Parent and the Company to make payments hereunder shall constitute a joint
and several liability of the Parent and the Company to the Executive. Such
payments shall be made from the general funds of the Parent or the Company or
15
both, and neither the Parent nor the Company shall be required to establish or
maintain any special or separate fund, or otherwise to segregate assets to
assure that such payments shall be made, and neither the Executive nor his
designated beneficiary shall have any interest in any particular asset of the
Parent or the Company by reason of either entity's obligations hereunder.
Nothing contained in this Agreement shall create or be construed as creating a
trust of any kind or any other fiduciary relationship between the Parent or the
Company and the Executive or any other person. To the extent that any person
acquires a right to receive payments from the Parent and the Company hereunder,
such right shall be no greater than the right of an unsecured creditor of the
Parent and the Company.
ARTICLE 10. SEVERABILITY. All agreements and covenants
contained herein, including the Restrictive Covenants, as defined in Article V,
are severable, and in the event any of them (or any portion thereof) shall be
held to be invalid or unenforceable by any competent court, the remainder of
this Agreement (including the remainder of the Restrictive Covenants if only a
portion thereof is held invalid or unenforceable) shall not thereby be affected,
shall be given full effect, and shall be interpreted as if such invalid
agreements, Restrictive Covenants or other covenants (or portion or portions
thereof) were not contained herein.
ARTICLE 11. ASSIGNMENT PROHIBITED. This Agreement is personal
to each of the parties hereto, and none of the parties may assign nor delegate
any of his or its rights or obligations hereunder.
ARTICLE 12. NO ATTACHMENT. Except as otherwise provided in
this Agreement or required by applicable law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge or hypothecation or to execution,
attachment, levy, or similar process or assignment by operation of law and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect.
ARTICLE 13. HEADINGS. The headings of articles, paragraphs
and sections herein are included solely for convenience of reference and shall
not control the meaning or interpretation of any of the provisions of this
Agreement.
ARTICLE 14. GOVERNING LAW. The parties intend that this
Agreement and the performance hereunder and all suits and special proceedings
hereunder shall be construed in accordance with and under and pursuant to the
laws of the State of Tennessee and that in any action, special proceeding or
other proceeding that may be brought arising out of, in connection with, or by
reason of this Agreement, the laws of the State of Tennessee shall be applicable
and shall govern to the exclusion of the law of any other forum, without regard
to the jurisdiction in which any action or special proceeding may be instituted.
ARTICLE 15. SUCCESSORS; BINDING AGREEMENT.
16
15.1 Successors. The Company and the Parent will require any
successor of all or substantially all of the business and/or assets of either of
them (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company or Parent would be required to
perform it if no such succession had taken place. Failure of the Company or
Parent to obtain such assumption and agreement prior to the effectiveness of any
such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company or the Parent in the same amount and
on the same terms as the Executive would be entitled to hereunder if he
terminated his employment for Good Reason following a Change in Control, except
that for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the date of Executive's
termination. As used in this Agreement, "Company" and "Parent" shall mean the
Company and the Parent as herein before defined and any successor to the
respective entity's business and/or assets as aforesaid which assumes and agrees
to perform this Agreement by operation of law, or otherwise.
15.2 Binding Agreement. This agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representative, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amount remains
payable to him hereunder, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to the Executive's
devisee, legatee or other designee or, if there is none, to the Executive's
estate.
ARTICLE 16. NO RESTRICTION ON EMPLOYMENT RIGHTS. Nothing in
this Agreement shall confer on the Executive any right to continue in the employ
of the Company or the Parent or shall interfere with or restrict in any way the
rights of the Company or the Parent, which are hereby expressly reserved, to
discharge the Executive at any time for any reason whatsoever, with or without
Cause, subject to the requirements of this Agreement. Nothing in this Agreement
shall restrict the right of the Executive to terminate his employment with the
Company or the Parent at any time for any reason whatsoever, with or without
Good Reason.
ARTICLE 17. COUNTERPARTS. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
ARTICLE 18. ENTIRE AGREEMENT. This Agreement expresses the
whole and entire agreement between the parties with reference to the employment
of the Executive and, as of the effective date hereof, supersedes and replaces
any prior employment agreement, understanding or arrangement (whether written or
oral) between the Company or the Parent and the Executive. Each of the parties
hereto has relied on his or its own judgment in entering into this Agreement.
ARTICLE 19. NOTICES. All notices, requests and other
communications to any party under this Agreement shall be in writing and shall
be given to such party at its address set forth below or such other address as
such party may hereafter specify for the purpose by notice to the other party:
17
(a) If to the Executive:
Xxxxxxx X. Xxxxxxxx
Equity Inns, Inc.
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
(b) If to the Company
Equity Inns Services, Inc.
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
(c) If to the Parent:
Equity Inns, Inc.
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Each such notice, request or other communication shall be effective (i) if given
by mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (ii) if given by any other
means, when delivered at the address specified in this Article 19.
ARTICLE 20. MODIFICATION OF AGREEMENT. No waiver or
modification of this Agreement or of any covenant, condition, or limitation
herein contained shall be valid unless in writing and duly executed by the party
to be charged therewith. No evidence of any waiver or modification shall be
offered or received in evidence at any proceeding, arbitration, or litigation
between the parties hereto arising out of or affecting this Agreement, or the
rights or obligations of the parties hereunder, unless such waiver or
modification is in writing, duly executed as aforesaid. The parties further
agree that the provisions of this Article 20 may not be waived except as herein
set forth.
ARTICLE 21. TAXES. To the extent required by applicable law,
the Company or the Parent shall deduct and withhold all necessary Social
Security and Hospital Insurance taxes and all necessary federal and state
withholding taxes and any other similar sums required by law to be withheld from
any payments made pursuant to the terms of this Agreement.
ARTICLE 22. RECITALS. The Recitals to this Agreement are
incorporated herein and shall constitute an integral part of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
18
IN WITNESS WHEREOF, the parties have executed this Agreement
on the day and year first above written.
EXECUTIVE:
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
XXXXXXX X. XXXXXXXX
EQUITY INNS SERVICES, INC.:
By: /s/ Xxxxxx X. Silver
----------------------------------
Title: President
EQUITY INNS, INC.:
By: /s/ Xxxxxx X. Silver
----------------------------------
Title: President
19
