Exhibit 10.11
EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT, made as of August 3, 1998 by and
between MERISTAR HOSPITALITY CORPORATION, a Maryland corporation (the
"Company"), MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership (the "Partnership"), and XXXX XXXXX (the "Executive"), an individual
residing at 0000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000.
The Company and the Partnership desire to employ the Executive in the
capacity of Chief Financial Officer, and the Executive desires to be so
employed, on the terms and subject to the conditions set forth in this agreement
(the "Agreement");
Now, therefore, in consideration of the mutual covenants set forth
herein and other good and valuable consideration the parties hereto hereby agree
as follows:
1. Employment; Term. The Company and the Partnership each hereby
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employs the Executive, and the Executive agrees to be employed by the Company
and the Partnership, upon the terms and subject to the conditions set forth
herein, for an initial term of one (1) year, commencing on the date of the
consummation of the merger (the "Merger") contemplated by the Agreement and Plan
of Merger among American General Hospitality Corporation and American General
Hospitality Operating Partnership, L.P., and Capstar Hotel Company ("CapStar"),
CapStar Management Company, L.P. and Capstar Management Company II, L.P., dated
as of March 15, 1998, as amended (the "Commencement Date"), unless terminated
earlier in accordance with Section 4 of this Agreement; provided that such term
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shall automatically be extended for a period of one (1) calendar day for each
day of services rendered, unless and until the Executive, on the one hand, or
the Company and the Partnership, on the other, gives notice to the other party
or parties not less than 120 days prior to such date of termination of this
Agreement. Notwithstanding the foregoing, in no event shall the term of this
Agreement extend beyond December 31, 2003, except as extended by mutual
agreement of the parties hereto. (The initial term of this Agreement as the
same may be extended in accordance with the terms of this Agreement is
hereinafter referred to as the "Term").
2. Positions; Conduct.
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(a) During the Term, the Executive will hold the title and office of,
and serve in the position of, Chief Financial Officer of the Company and the
Partnership. The Executive shall undertake the responsibilities and exercise
the authority customarily performed, undertaken and exercised by persons
situated in a similar executive capacity, and shall perform such other specific
duties and services (including service as an officer, director or equivalent
position of any direct or indirect subsidiary without additional compensation)
as they shall reasonably request consistent with the Executive's position.
(b) During the Term, the Executive agrees to devote his full business
time and attention to the business and affairs of the Company and the
Partnership and to faithfully and diligently perform, to the best of his
ability, all of his duties and responsibilities hereunder; provided, that the
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Executive may devote his business time to providing services to Meristar Hotels
& Resorts, Inc. ("MHR"), and may provide services as described in Schedule A
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attached hereto, so long as such activity does not interfere with the
performance of the Executive's duties hereunder. Nothing in this Agreement
shall preclude the Executive from devoting reasonable time and attention to (i)
serving, with the approval of the Board, as a director, trustee or member of any
committee of any organization, (ii) engaging in charitable and community
activities and (iii) managing his personal investments and affairs; provided
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that such activities do not involve any material conflict of interest with the
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interests of the Company or, individually or collectively, interfere materially
with the performance by the Executive of his duties and responsibilities under
this Agreement. Notwithstanding the foregoing and except as expressly provided
herein, during the Term, the Executive may not accept employment with any other
individual or entity, or engage in any other venture which is directly or
indirectly in conflict or competition with the business of the Company or the
Partnership.
(c) The Executive's office and place of rendering his services under
this Agreement shall be in the principal executive offices of the Company which
shall be in the Washington, D.C. metropolitan area. Under no circumstances
shall the Executive be required to relocate from the Washington, D.C.
metropolitan area or provide services under this Agreement in any other location
other than in connection with reasonable and customary business travel. During
the Term, the Company shall provide the Executive with executive office space,
and administrative and secretarial assistance and other support services
consistent with his position as Chief Financial Officer and with his duties and
responsibilities hereunder.
3. Salary; Additional Compensation; Perquisites and Benefits.
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(a) During the Term, the Company and the Partnership will pay the
Executive a base salary at an aggregate annual rate of not less than $275,000
per annum, subject to annual review by the Compensation Committee of the Board
(the "Compensation Committee"), and in the discretion of such Committee,
increased from time to time. Once increased, such base salary may not be
decreased. Such salary shall be paid in periodic installments in accordance
with the Company's standard practice, but not less frequently than semi-monthly.
(b) For each fiscal year during the Term, the Executive will be
eligible to receive a bonus from the Company. The award and amount of such
bonus shall be based upon the achievement of predefined operating or performance
goals and other criteria established by the Compensation Committee, which goals
shall give the Executive the opportunity to earn a bonus in the following
amounts: threshold target - 25% of base salary; target - 100% of base salary;
and maximum bonus amount - 125% of base salary.
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(c) During the Term, the Executive will participate in all plans now
existing or hereafter adopted by the Company or the Partnership for their
management employees or the general benefit of their employees, such as any
pension, profit-sharing, bonuses, stock option or other incentive compensation
plans, life and health insurance plans, or other insurance plans and benefits on
the same basis and subject to the same qualifications as other senior executive
officers; provided, however, if superior benefits are provided by MHR to
executives of MHR, the Executive will be provided benefits substantially
equivalent to the MHR benefits.
(d) (1) The Executive shall be eligible for stock option grants from
time to time pursuant to the Company's Incentive Plan in accordance with the
terms thereof. The Compensation Committee has granted to the Executive,
effective on the Commencement Date, options to purchase 120,936 shares of the
common stock of the Company at an exercise price equal to the fair market value
at the time of grant. Subject to the terms of this Agreement as to the
acceleration of vesting of stock options, such options shall vest as follows:
First Anniversary of the Commencement Date 33-1/3%
vested Second Anniversary of the
Commencement Date 66-2/3%
vested Third Anniversary of the
Commencement Date 100% vested
Such options shall be exercisable, subject to vesting and continued service, for
ten (10) years from the date of grant and in all other respects shall be subject
to the terms and conditions of the Incentive Plan.
(2) By executing this Agreement, the Executive hereby agrees to waive
the accelerated vesting of stock options granted to the Executive under the
Capstar Hotel Company Equity Incentive Plan (the "Capstar Plan"), which would
otherwise occur as a result of the consummation of the Merger, and such options
shall continue to vest in accordance with their terms and the terms of the
Capstar Plan. Such pre-Merger grants of options (the "Pre-Merger Awards") will
become fully vested if the Executive's employment is terminated voluntarily or
involuntarily within twenty-four (24) months of the Merger.
(3) On the Commencement Date, the Company shall issue to the
Executive 10,146 shares of common stock of the Company (the "Restricted Stock").
The Restricted Stock shall vest in three nearly equal installments on each of
the first, second and third anniversaries of the Commencement Date, conditioned
upon the Executive's continuing to be employed by the Company on such dates or
as otherwise provided by this Agreement.
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(e) The Company and the Partnership will reimburse the Executive, in
accordance with their standard policies from time to time in effect, for all
out-of-pocket business expenses as may be incurred by the Executive in the
performance of his duties under this Agreement.
(f) The Executive shall be entitled to vacation time to be credited
and taken in accordance with the Company's policy from time to time in effect
for senior executives, which in any event shall not be less than a total of four
weeks per calendar year.
(g) The Executive shall be provided with an automobile comparable to
the automobile provided to Executive by CapStar.
(h) To the fullest extent permitted by applicable law, the Executive
shall be indemnified and held harmless by the Company and the Partnership
against any and all judgments, penalties, fines, amounts paid in settlement, and
other reasonable expenses (including, without limitation, reasonable attorneys'
fees and disbursements) actually incurred by the Executive in connection with
any threatened, pending or completed action, suit or proceeding (whether civil,
criminal, administrative, investigative or other) for any action or omission in
his capacity as a director, officer or employee of the Company or the
Partnership.
Indemnification under this Section 3(h) shall be in addition to, and
not in substitution of, any other indemnification by the Company or the
Partnership of its officers and directors. Expenses incurred by the Executive
in defending an action, suit or proceeding for which he claims the right to be
indemnified pursuant to this Section 3(h) shall be paid by the Company or the
Partnership, as the case may be, in advance of the final disposition of such
action suit or proceeding upon the Company's or the Partnership's receipt of (x)
a written affirmation by the Executive of his good faith belief that the
standard of conduct necessary for his indemnification hereunder and under the
provisions of applicable law has been met and (y) a written undertaking by or on
behalf of the Executive to repay the amount advanced if it shall ultimately be
determined by a court that the Executive engaged in conduct which precludes
indemnification under the provisions of such applicable law. Such written
undertaking in clause (y) shall be accepted by the Company or the Partnership,
as the case may be, without security therefor and without reference to the
financial ability of the Executive to make repayment thereunder. The Company
and the Partnership shall use commercially reasonable efforts to maintain in
effect for the Term of this Agreement a directors' and officers' liability
insurance policy, with a policy limit of at least $5,000,000, subject to
customary exclusions, with respect to claims made against officers and directors
of the Company or the Partnership; provided, however, the Company or the
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Partnership, as the case may be, shall be relieved of this obligation to
maintain directors' and officers' liability insurance if, in the good faith
judgment of the Company or the Partnership, it cannot be obtained at a
reasonable cost.
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4. Termination.
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(a) The Term will terminate immediately upon the Executive's death or,
upon thirty (30) days' prior written notice by the Company, in the case of a
determination of the Executive's Disability. As used herein the term
"Disability" means the Executive's inability to perform his duties and
responsibilities under this Agreement for a period of more than 120 consecutive
days, or for more than 180 days, whether or not continuous, during any 365-day
period, due to physical or mental incapacity or impairment. A determination of
Disability will be made by a physician reasonably satisfactory to both the
Executive and the Company and paid for by the Company or the Partnership whose
decision shall be final and binding on the Executive and the Company; provided
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that if they cannot agree as to a physician, then each shall select and pay for
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a physician and these two together shall select a third physician whose fee
shall be borne equally by the Executive and either the Company or the
Partnership and whose determination of Disability shall be binding on the
Executive and the Company. Should the Executive become incapacitated, his
employment shall continue and all base and other compensation due the Executive
hereunder shall continue to be paid through the date upon which the Executive's
employment is terminated for Disability in accordance with this section.
(b) The Term may be terminated by the Company upon notice to the
Executive upon the occurrence of any event constituting "Cause" as defined
herein.
(c) The Term may be terminated by the Executive upon notice to the
Company of any event constituting "Good Reason" as defined herein.
5. Severance.
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(a) If the Term is terminated by the Company for Cause, the Company
and the Partnership will pay to the Executive an aggregate amount equal to the
Executive's accrued and unpaid base salary through the date of such termination,
and all unvested options will terminate immediately and any vested options
issued pursuant to the Company's Incentive Plan and held by the Executive at
termination, will expire ninety (90) days after the termination date.
(b) If the Term is terminated by the Executive other than because of
death, Disability or for Good Reason, the Company and the Partnership will pay
to the Executive an aggregate amount equal to the Executive's accrued and unpaid
base salary through the date of such termination, and all unvested options will
terminate immediately and any vested options issued pursuant to the Company's
Incentive Plan and held by the Executive at termination, will expire ninety (90)
days after the termination date.
(c) If the Term is terminated upon the Executive's death or
Disability, the Company and the Partnership will pay to the Executive's estate
or the Executive, as the case may be, a lump sum payment equal to the
Executive's base salary through the termination date,
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plus a pro rata portion of the Executive's bonus for the fiscal year in which
the termination occurred. In addition, the Company will make payments for one
(1) year of all compensation otherwise payable to the Executive pursuant to this
Agreement, including, but not limited to, base salary, bonus and welfare
benefits. In addition, all of the Executive's unvested stock options and
restricted stock awards will immediately vest and become exercisable for a
period of one (1) year thereafter and shares of restricted stock of the Company
previously granted to the Executive shall become free from all contractual
restrictions.
(d) Subject to Section 5(e) hereof, if the Agreement is terminated by
the Company without Cause or other than by reason of his death or Disability, in
addition to any other remedies available, or if the Executive terminates this
Agreement for Good Reason, the Company and the Partnership shall pay the
Executive, in accordance with regular payroll practices, an amount equal to the
sum of (A) the Executive's then annual base salary for the remainder of the Term
and (B) in lieu of the bonus amount he would have received had he remained
employed by the Company and the Partnership through the end of the Term, the
bonus amount he received in the year immediately prior to his termination, or if
the Term is terminated prior to December 31, 1999, the Executive's target bonus
for such year (the "Severance Amount"). In addition, all of the Executive's
unvested stock options and restricted stock awards will immediately vest and
become exercisable for a period of one (1) year thereafter and shares of
restricted stock of the Company previously granted to the Executive shall become
free from all contractual restrictions, and the Company shall continue in effect
the Executive's health insurance benefits until the earlier of (x) one (1) year
from the end of the Term or (y) the date on which the Executive obtains health
insurance coverage from a subsequent employer.
(e) If, within eighteen (18) months following a Change in Control, the
Term is terminated by the Executive for Good Reason or by the Company without
Cause, in addition to any other rights which the Executive may have under law or
otherwise, the Executive shall receive the same payments and benefits provided
for under Section 5(d) hereof; provided, that in addition, he shall also receive
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a lump sum payment in an amount equal to the Severance Amount.
(f) Notwithstanding anything in this Section 5 to the contrary if the
Term is terminated for any reason within twenty-four (24) months following the
Merger, the Pre-Merger Awards will immediately vest and remain exercisable in
accordance with their respective terms; provided, however, such pre-Merger
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Awards will have an exercise period of at least one (1) year from the date of
termination.
(g) As used herein, the term "Cause" means:
(i) the Executive's willful and intentional failure or refusal to
perform or observe any of his material duties, responsibilities or
obligations set forth in this Agreement; provided, however, that the
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Company shall not be deemed to have
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Cause pursuant to this clause (i) unless the Company gives the Executive
written notice that the specified conduct has occurred and making specific
reference to this Section 6(g)(i) and the Executive fails to cure the
conduct within thirty (30) days after receipt of such notice;
(ii) any willful and intentional act of the Executive involving
malfeasance, fraud, theft, misappropriation of funds, embezzlement or
dishonesty affecting the Company or the Partnership; or
(iii) the Executive's conviction of, or a plea of guilty or nolo
contendere to, an offense which is a felony in the jurisdiction involved.
Termination of the Executive for Cause shall be communicated by a Notice of
Termination. For purposes of this Agreement, a "Notice of Termination" shall
mean delivery to the Executive of a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire membership of the
Company's Board at a meeting of the Board called and held for the purpose (after
reasonable notice to the Executive and reasonable opportunity for the Executive,
together with the Executive's counsel, to be heard before the Board prior to
such vote) of finding that in the good faith opinion of the Board, the Executive
was guilty of conduct constituting Cause and specifying the particulars thereof
in detail, including, with respect to any termination based upon conduct
described in clause (i) above that the Executive failed to cure such conduct
during the thirty-day period following the date on which the Company gave
written notice of the conduct referred to in such clause (i). For purposes of
this Agreement, no such purported termination of the Executive's employment
shall be effective without such Notice of Termination;
(h) As used herein, the term "Good Reason" means the occurrence of any
of the following, without the prior written consent of the Executive:
(i) assignment of the Executive of duties materially inconsistent
with the Executive's positions as described in Section 2(a) hereof, or any
significant diminution in the Executive's duties or responsibilities, other
than in connection with the termination of the Executive's employment for
Cause, Disability or as a result of the Executive's death or by the
Executive other than for Good Reason;
(ii) the change in the location of the Company's principal
executive offices or of the Executive's principal place of employment to a
location outside the Washington, D.C. metropolitan area;
(iii) any material breach of this Agreement by the Company or the
Partnership which is continuing; or
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(iv) a Change in Control of MHR, as defined in Section 5(i)(B) of
this Agreement;
provided, however, that the Executive shall not be deemed to have Good Reason
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pursuant to clauses (i) or (iii) above unless the Executive gives the Company or
the Partnership, as the case may be, written notice that the specified conduct
or event has occurred and the Company or the Partnership fails to cure such
conduct or event within thirty (30) days of the receipt of such notice.
(i) As used herein, the term "Change in Control" means the occurrence
of any one of the following events:
(A) (i) the acquisition (other than from the Company) by any "Person"
(as the term is used for purposes of Sections 13(d) or 14(d) of the
Exchange Act) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of fifty (50%) percent or more of the
combined voting power of the Company's then outstanding voting securities;
or
(ii) the individuals who were members of the Board (the
"Incumbent Board") during the previous twelve (12) month period, cease for
any reason to constitute at least a majority of the Board; provided,
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however, that if the election, or nomination for election by the Company's
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stockholders, of any new director was approved by a vote of at least two-
thirds of the Incumbent Board, such new director shall, for purposes of
this Agreement, be considered as a member of the Incumbent Board; or
(iii) approval by stockholders of the Company of (a) merger or
consolidation involving the Company if the stockholders of the Company,
immediately before such merger or consolidation do not, as a result of such
merger or consolidation, own, directly or indirectly, more than seventy
(70%) percent of the combined voting power of the then outstanding voting
securities of the corporation resulting from such merger or consolidation
in substantially the same proportion as their ownership of the combined
voting power of the voting securities of the Company outstanding
immediately before such merger or consolidation or (b) a complete
liquidation or dissolution of the Company or an agreement for the sale or
other disposition of all or substantially all of the assets of the Company.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur pursuant to clause (i) above solely because fifty (50%) percent or
more of the combined voting power of the Company's then outstanding
securities is acquired by (a) a trustee or other fiduciary holding
securities under one or more employee benefit plans maintained by the
Company or any of its subsidiaries or (b) any corporation which,
immediately prior to such acquisition, is owned directly or indirectly by
the
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stockholders of the Company in the same proportion as their ownership of
stock in the Company immediately prior to such acquisition; or
(B) (i) the acquisition (other than from MHR) by any "Person" (as the
term is used for purposes of Sections 13(d) or 14(d) of the Exchange Act)
of beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of fifty (50%) percent or more of the combined voting
power of MHR's then outstanding voting securities; or
(ii) the individuals who were members of the Board of Directors
of MHR (the "MHR Incumbent Board") during the previous twelve (12) month
period, cease for any reason to constitute at least a majority of the Board
of Directors of MHR; provided, however, that if the election, or nomination
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for election by MHR's stockholders, of any new director was approved by a
vote of at least two-thirds of the MHR Incumbent Board, such new director
shall, for purposes of this Agreement, be considered as a member of the MHR
Incumbent Board; or
(iii) approval by stockholders of MHR of (a) merger or
consolidation involving MHR if the stockholders of MHR, immediately before
such merger or consolidation do not, as a result of such merger or
consolidation, own, directly or indirectly, more than seventy (70%) percent
of the combined voting power of the then outstanding voting securities of
the corporation resulting from such merger or consolidation in
substantially the same proportion as their ownership of the combined voting
power of the voting securities of MHR outstanding immediately before such
merger or consolidation or (b) a complete liquidation or dissolution of MHR
or an agreement for the sale or other disposition of all or substantially
all of the assets of MHR.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur pursuant to clause (i) above solely because fifty (50%) percent or
more of the combined voting power of MHR's then outstanding securities is
acquired by (a) a trustee or other fiduciary holding securities under one
or more employee benefit plans maintained by MHR or any of its subsidiaries
or (b) any corporation which, immediately prior to such acquisition, is
owned directly or indirectly by the stockholders of MHR in the same
proportion as their ownership of stock in MHR immediately prior to such
acquisition.
(j) The amounts required to be paid and the benefits required to be
made available to the Executive under this Section 5 are absolute. Under no
circumstances shall the Executive, upon the termination of his employment
hereunder, be required to seek alternative employment and, in the event that the
Executive does secure other employment, no compensation or other benefits
received in respect of such employment shall be set-off or in any other way
limit or reduce the obligations of the Company under this Section 5.
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(k) In the event that any payment, benefit or other right or
compensation due to the Executive hereunder or otherwise from the Company,
including, without limitation, the accelerated vesting of the Executive's rights
with respect to stock options, restricted stock or any other benefit or
compensation, results in the imposition of an excise tax payable by the
Executive under Section 4999 of the Internal Revenue Code, or any successor or
other provision with respect to "excess parachute payments" within the meaning
of Section 280G(b) of the Internal Revenue Code, the Company shall make a cash
payment to the Executive in the amount of such excise tax (the "Excise Tax
Payment") and shall also make a cash payment to the Executive in an amount equal
to the total of federal, state and local income and excise taxes for which the
Executive may be liable on account of such Excise Tax Payment.
6. Confidential Information.
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(a) The Executive acknowledges that the Company and its subsidiaries
or affiliated ventures ("Company Affiliates") own and have developed and
compile, and will in the future own, develop and compile certain Confidential
Information and that during the course of his rendering services hereunder
Confidential Information will be disclosed to the Executive by the Company
Affiliates. The Executive hereby agrees that, during the Term and for a period
of three years thereafter, he will not use or disclose, furnish or make
accessible to anyone, directly or indirectly, any Confidential Information of
the Company Affiliates.
(b) As used herein, the term "Confidential Information" means any
trade secrets, confidential or proprietary information, or other knowledge,
know-how, information, documents or materials, owned, developed or possessed by
a Company Affiliate pertaining to its businesses the confidentiality of which
such company takes reasonable measures to protect, including, but not limited
to, trade secrets, techniques, know-how (including designs, plans, procedures,
processes and research records), software, computer programs, innovations,
discoveries, improvements, research, developments, test results, reports,
specifications, data, formats, marketing data and business plans and strategies,
agreements and other forms of documents, expansion plans, budgets, projections,
and salary, staffing and employment information. Notwithstanding the foregoing,
Confidential Information shall not in any event include information which (i)
was generally known or generally available to the public prior to its disclosure
to the Executive, (ii) becomes generally known or generally available to the
public subsequent to its disclosure to the Executive through no wrongful act of
the Executive, (iii) is or becomes available to the Executive from sources other
than the Company Affiliates which sources are not known to the Executive to be
under any duty of confidentiality with respect thereto or (iv) the Executive is
required to disclose by applicable law or regulation or by order of any court or
federal, state or local regulatory or administrative body (provided that the
Executive provides the Company with prior notice of the contemplated disclosure
and reasonably cooperates with the Company, at the Company's sole expense, in
seeking a protective order or other appropriate protection of such information).
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7. Specific Performance.
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(a) The Executive acknowledges that the services to be rendered by him
hereunder are of a special, unique, extraordinary and personal character and
that the Company Affiliates would sustain irreparable harm in the event of a
violation by the Executive of Section 6 hereof. Therefore, in addition to any
other remedies available, the Company shall be entitled to specific enforcement
and/or an injunction from any court of competent jurisdiction restraining the
Executive from committing or continuing any such violation of this Agreement
without proving actual damages or posting a bond or other security. Nothing
herein shall be construed as prohibiting the Company from pursuing any other
remedies available to it for such breach or threatened breach, including the
recovery of damages.
(b) If any of the restrictions on activities of the Executive
contained in Section 6 hereof shall for any reason be held by a court of
competent jurisdiction to be excessively broad, such restrictions shall be
construed so as thereafter to be limited or reduced to be enforceable to the
maximum extent compatible with the applicable law as it shall then appear; it
being understood that by the execution of this Agreement the parties hereto
regard such restrictions as reasonable and compatible with their respective
rights.
(c) Notwithstanding anything in this Agreement to the contrary, in the
event that the Company fails to make any payment of any amounts or provide any
of the benefits to the Executive when due as called for under Section 5 of this
Agreement and such failure shall continue for twenty (20) days after notice
thereof from the Executive, all restrictions on the activities of the Executive
under Section 6 hereof shall be immediately and permanently terminated.
8. Withholding. The parties agree that all payments to be made to
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the Executive by the Company pursuant to the Agreement shall be subject to all
applicable withholding obligations of such company.
9. Notices. All notices required or permitted hereunder shall be in
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writing and shall be deemed given and received when delivered personally, four
(4) days after being mailed if sent by registered or certified mail, postage
pre-paid, or by one (1) day after delivery if sent by air courier (for next-day
delivery) with evidence of receipt thereof or by facsimile with receipt
confirmed by the addressee. Such notices shall be addressed respectively:
If to the Executive, to:
0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
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If to the Company or to the Partnership, to:
MeriStar Hospitality Corporation
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
or to any other address of which such party may have given notice to the other
parties in the manner specified above.
10. Miscellaneous.
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(a) This Agreement is a personal contract calling for the provision of
unique services by the Executive, and the Executive's rights and obligations
hereunder may not be sold, transferred, assigned, pledged or hypothecated by the
Executive. The rights and obligations of the Company and the Partnership
hereunder will be binding upon and run in favor of their respective successors
and assigns. The Company will not be deemed to have breached this Agreement if
any obligations of the Company to make payments to the Executive are satisfied
by the Partnership.
(b) This Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Delaware, without regard to
conflict of laws principles.
(c) Any controversy arising out of or relating to this Agreement or
any breach hereof shall be settled by arbitration in Washington, D.C. by a
single neutral arbitrator in accordance with the Commercial Arbitration Rules of
the American Arbitration Association. Judgment upon any award rendered may be
entered in any court having jurisdiction thereof, except in the event of a
controversy relating to any alleged violation by the Executive of Section 6
hereof, in which case the Company shall be entitled to seek injunctive relief
from a court of competent jurisdiction without the requirement to seek
arbitration.
(d) The headings of the various sections of this Agreement are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
(e) The provisions of this Agreement which by their terms call for
performance subsequent to the expiration or termination of the Term shall
survive such expiration or termination.
(f) The Company and the Partnership shall reimburse the Executive for
all costs incurred by the Executive in any proceeding for the successful
enforcement of the terms of this Agreement, including without limitation all
costs of investigation and reasonable attorneys fees and expenses.
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(g) This Agreement constitutes the entire agreement of the parties
hereto with respect to the subject matter hereof and supersedes all other prior
agreements and undertakings, both written and oral, among the parties with
respect to the subject matter hereof, all of which shall be terminated on the
Commencement Date. In addition, the parties hereto hereby waive all rights such
party may have under all other prior agreements and undertakings, both written
and oral, among the parties hereto, or among the Executive, CapStar Hotel
Company and CapStar Management Co., L.P., with respect to the subject matter
hereof.
(h) This Agreement is conditioned upon and subject to the consummation
of the Merger and shall not be effective until the Merger is consummated.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
EXECUTIVE:
_____________________________________
Xxxx Xxxxx
COMPANY:
MERISTAR HOSPITALITY CORPORATION
By:___________________________________
Name:
Title:
PARTNERSHIP:
MERISTAR HOSPITALITY OPERATING PARTNERSHIP L.P.
By:____________________________,
its general partner
By:___________________________________
Name:
Title:
14
