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(a) Salary. The Executive’s base salary
will be $275,000 per year during the Term, payable monthly
or as otherwise payable for other executive officers of the
Company from time to time. As of January 1 of each calendar year
during the Term, such
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base salary will be reviewed and may be increased (but not
decreased), as determined by the Compensation Committee of the
Board (the “Compensation Committee”) in its sole
discretion. If the Executive’s base salary is reduced below
the then-current amount at any time during the Term, then
Executive shall have the right to terminate this Agreement
pursuant to Section 8(b) or 8(d) hereof, as the case may be.
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(b) Incentive Bonus. For each fiscal year of
the Company during the Term, the Executive will be eligible to
receive an annual performance bonus. The actual amount of such
bonus, if any, will be determined based upon the Executive’s
achievement of individual and corporate performance objectives
established by the Compensation Committee pursuant to this
Agreement or pursuant to any bonus plan in effect for the other
executive officers of the Company from time to time. The
Compensation Committee will determine in its sole discretion
whether the performance objectives established for Executive have
been met by Executive for any fiscal year, and such
determination will binding upon Executive. Such bonus, if any,
will be payable in cash at such time as bonuses are payable to
other executive officers of the Company, and Executive will not
be entitled to any such bonus until the Compensation Committee
has determined and authorized the amount and payment of the bonus
to Executive.
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(c) Other Bonuses. In addition to any bonuses
that Executive may receive under Section 4(b) above,
Executive may be eligible to receive a bonus in the event that
the Company completes one or more transactions that significantly
increases the number of hotels in its portfolio or otherwise
materially increases the Company’s earnings or free cash
flow potential. If a major transaction is completed, the
Compensation Committee shall evaluate the overall economic impact
of the transaction and establish an appropriate deal bonus for
Executive. The determination of whether any such transaction has
occurred will be made by the Compensation Committee in its sole
discretion, and such determination will be binding upon
Executive. In addition, the actual amount of such bonus, if any,
will be determined by the Compensation Committee in its sole
discretion. Executive will not be entitled to any such bonus
until the Compensation Committee has determined and authorized
the amount and payment of the bonus to Executive.
5. Options and Restricted Stock.
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(a) On the date hereof, the Company will grant to Executive
non-qualified stock options pursuant to the Company’s 1998
Equity Incentive Plan (the “Equity Incentive Plan”) to
acquire 80,000 shares of the common stock, par value
$.01 per share (the “Common Stock”), of the
Company. Such options will have an exercise price of
$6.38 per share and will vest over a four-year period, with
25% of the options (i.e., 20,000 options) vesting on each
anniversary of the date of grant, with such options being fully
vested on the fourth anniversary of the date of grant. Such
options will be evidenced by a stock option agreement to be
entered into between Executive and the Company substantially in
the form of the stock option agreement required by the Equity
Incentive Plan. Executive acknowledges that such options will be
in respect of his compensation package for both 1999 and 2000
and, accordingly, Executive will not receive any option grants in
2000 unless the Compensation Committee determines otherwise in
its sole discretion.
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(b) On the date hereof, the Company will grant to Executive
50,000 shares of “restricted stock” pursuant to
the Equity Incentive Plan. Such shares will vest over a four-year
period with 25% of the shares (i.e., 12,500 shares) vesting
on each anniversary of the date of grant, with such shares being
fully vested on the fourth anniversary of the date of grant.
Such shares will be evidenced by a restricted stock agreement to
be entered into between Executive and the Company substantially
in the form of the agreement required by the Equity Incentive
Plan.
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(c) In addition, the Executive will be eligible to
participate in any subsequent awards of options or other equity
rights that are made under the Equity Incentive Plan during the
Term, at such levels and on such terms as may be determined by
the Compensation Committee in its sole discretion.
6. Benefits.
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(a) Participation in Plans. During the Term, the
Executive will be entitled to participate in all retirement and
welfare plans and programs of the Company in which executive
officers of the Company participate. The Executive’s rights
under such plans and programs will be governed by the terms
thereof and will not be enlarged hereunder or otherwise affected
hereby.
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(b) Amendment or Termination. The Executive
acknowledges that the Company, in its sole discretion, may amend
or terminate any such plan at any time.
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7. Expenses. The Company will pay or reimburse the
Executive for reasonable and necessary expenses incurred by the
Executive in connection with his duties on behalf of the Company
in accordance with the general policies of the Company in effect
from time to time for other executive officers of the Company.
8. Termination.
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(a) Termination of Employment. The Executive’s
employment hereunder may be terminated by the Company or the
Executive for any reason, or without reason, by written notice as
provided in Section 13. Subject to the following provisions
of this Section 8 and any benefit continuation requirements
of applicable law, in the event that the Executive’s
employment hereunder is terminated during the Term by the Company
or the Executive, the compensation and benefit obligations of
the Company under this Agreement will cease as of the effective
date of such termination, except (i) for any compensation
and benefits earned or accrued but unpaid through such date and
(ii) as otherwise provided in this Section 8. Certain
capitalized terms used in this Section 8 are defined in
Section 8(i).
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(b) Termination by the Company or Executive Within One
Year after a Change of Control. If a Change of Control shall
occur during the Term and any of the following shall occur:
(i) the Executive’s employment hereunder is terminated
by the Company during the period commencing on the effective date
of the Change of Control
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and ending one year thereafter other than for Cause or as a
result of the Executive’s death or Disability,
(ii) during such one-year period Executive’s base
salary is reduced by the Board of Directors or the Compensation
Committee below the amount of Executive’s base salary as in
effect immediately prior to the effective date of the Change of
Control and, within one month after such reduction, Executive
terminates this Agreement, or (iii) at any time during such
one-year period neither J. Xxxxx Xxxxx nor Xxxx X.
Xxxxxxx holds the position of Chief Executive Officer (or if
there is no position of Chief Executive Officer, then neither
holds the position of President) or equivalent position (in the
case of a legal entity that is not a corporation) of the Company
or any successor company to the Company resulting from the Change
of Control and, within one month after such time, Executive
terminates this Agreement; then in any such event the Company
will pay the amount and make available the benefits specified
below:
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(i) Cash Payment. The Executive will receive
an amount equal to two times the average of his total cash
compensation (including bonus) for the preceding two calendar
years. Such payment will be made in a single lump sum within
15 calendar days after the effective date of the
Executive’s termination of employment with the Company (the
“Termination Date”).
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(ii) Welfare Benefits. During the two-year
period beginning on the Termination Date (the “Two-Year
Severance Period”), the Company will continue to provide the
Executive with any welfare benefits that he was receiving from
the Company immediately prior to the Termination Date
(“Welfare Benefits”). Such Welfare Benefits will be
provided to the Executive on the same terms and conditions
(including employee contributions toward the cost of benefits or
coverage) under which the Executive was entitled to participate
immediately prior to the termination Date. Such Welfare Benefits
may be modified or terminated at any time by the Company
following the Termination Date, provided that such change is
applicable to senior executives of the Company generally.
Notwithstanding the foregoing, the Company’s obligation to
provide Welfare Benefits pursuant to this Section 8(b)(ii)
will terminate when the Executive commences any employment with
any third party during the Two-Year Severance Period (or, if
later, when any applicable waiting periods for welfare benefit
coverage with such third-party employer have expired).
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(iii) Options and Other Equity Rights. On the
Termination Date, all options, shares of restricted stock and
other equity rights granted to the Executive pursuant to
Section 5 hereof which have not vested or become
exercisable, as applicable, will vest and become exercisable (and
any restrictions on the restricted stock, including the risk of
forfeiture, set forth in the applicable restricted stock
agreement will be lifted).
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(c) Constructive Termination. If at any time during
the Term, Executive’s responsibilities are substantially
reduced from the responsibilities he has on the Commencement
Date, whether before or after the occurrence of a Change of
Control, then Executive may, during the one-month period
commencing after the expiration of the Trial Period, terminate
this Agreement. In the event Executive terminates this Agreement
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pursuant to this Section 8(c), the Company will pay the
amount and make available the benefits specified below:
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(i) Cash Payment. The Executive will receive
an amount equal to 75% of the average of his total cash
compensation (including bonus) for the preceding two calendar
years. Such payment will be made in a single lump sum within
15 calendar days after the Termination Date.
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(ii) Welfare Benefits. During the nine-month period
beginning on the Termination Date (the “Nine-Month Severance
Period”), the Company will continue to provide the
Executive with any Welfare Benefits that he was receiving from
the Company immediately prior to the Termination Date. Such
Welfare Benefits will be provided to the Executive on the same
terms and conditions (including employee contributions toward the
cost of benefits or coverage) under which the Executive was
entitled to participate immediately prior to the Termination
Date. Such Welfare Benefits may be modified or terminated at any
time by the Company following the Termination Date, provided that
such change is applicable to senior executives of the Company
generally. Notwithstanding the foregoing, the Company’s
obligation to provide Welfare Benefits pursuant to this
Section 8(c)(ii) will terminate when the Executive commences
any employment with any third party during the Nine-Month
Severance Period (or, if later, when any applicable waiting
periods for welfare benefit coverage with such third-party
employer have expired).
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(iii) Options and Other Equity Rights. On the
Termination Date, 50% of all options, shares of restricted stock
and other equity rights that are evidenced by each grant of
options, shares of restricted stock or other equity rights
granted to the Executive pursuant to Section 5 hereof which
have not vested or become exercisable, as applicable, will vest
and become exercisable and the other 50% of the options, shares
of restricted stock or other equity rights evidenced by each such
grant will terminate and be forfeited by Executive (and, with
respect to the shares of restricted stock that become vested, any
restrictions on such shares, including the risk of forfeiture,
set forth in the applicable restricted stock agreement for such
shares will be lifted).
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(d) Termination Without Cause. If (i) the
Executive’s employment hereunder is terminated during the
Term by the Company (other than pursuant to Section 8(b),
(c) or (e) or as a result of the Executive’s death
or Disability) or (ii) at any time during the Term,
Executive’s base salary is reduced by the Board of Directors
or the Compensation Committee below the then-current amount and,
within one month after such reduction, Executive terminates this
Agreement; then the Company will pay the amount and make
available the benefits specified below (provided that nothing in
this Section 8(d) shall limit Executive’s rights to
proceed under Section 8(b) instead of this Section 8(d)
if the conditions set forth in Section 8(b) are met):
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(i) Cash Payment. The Executive will receive
an amount equal to his total cash compensation (including bonus)
for the immediately-preceding
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calendar year. Such payment will be made in a single lump sum
within 15 calendar days after the Termination Date.
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(ii) Welfare Benefits. During the one-year
period beginning on the Termination Date (the “One-Year
Severance Period”), the Company will continue to provide the
Executive with any Welfare Benefits that he was receiving from
the Company immediately prior to the Termination Date. Such
Welfare Benefits will be provided to the Executive on the same
terms and conditions (including employee contributions toward the
cost of benefits or coverage) under which the Executive was
entitled to participate immediately prior to the termination
Date. Such Welfare Benefits may be modified or terminated at any
time by the Company following the Termination Date, provided that
such change is applicable to senior executives of the Company
generally. Notwithstanding the foregoing, the Company’s
obligation to provide Welfare Benefits pursuant to this
Section 8(d)(ii) will terminate when the Executive commences
any employment with any third party during the One-Year
Severance Period (or, if later, when any applicable waiting
periods for welfare benefit coverage with such third-party
employer have expired).
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(iii) Options and Other Equity Rights. On the
Termination Date, 50% of all options, shares of restricted stock
and other equity rights that are evidenced by each grant of
options, shares of restricted stock or other equity rights
granted to the Executive pursuant to Section 5 hereof which
have not vested or become exercisable, as applicable, will vest
and become exercisable and the other 50% of the options, shares
of restricted stock or other equity rights evidenced by each such
grant will terminate and be forfeited by Executive (and, with
respect to the shares of restricted stock that become vested, any
restrictions on such shares, including the risk of forfeiture,
set forth in the applicable restricted stock agreement for such
shares will be lifted).
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(e) Termination for Cause. If the Executive’s
employment hereunder is terminated during the Term by the Company
for Cause, the Executive will be entitled to no salary or
Welfare Benefits (other than as required by law) which might
otherwise accrue after the Termination Date. On the Termination
Date, all options, shares of restricted stock and other equity
rights granted to the Executive pursuant to Section 5 hereof
which have not vested or become exercisable, as applicable, will
terminate and be forfeited by Executive.
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(f) Termination or Resignation by Executive. If
Executive voluntarily resigns or terminates his employment
hereunder during the Term (other than pursuant to
Section 8(b), (c) or (d)), then Executive will be
entitled to no salary or Welfare Benefits (other than as required
by law) which might otherwise accrue after the Termination Date.
On the Termination Date, all options, shares of restricted stock
and other equity rights granted to the Executive pursuant to
Section 5 hereof which have not vested or become
exercisable, as applicable, will terminate and be forfeited by
Executive.
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(g) Release. Acceptance by the Executive of
any amounts pursuant to this Section 8 will constitute a
full and complete release by the Executive of any and all claims
the Executive has or may have against the Company, its officers,
directors and affiliates, including without limitation claims he
might have relating to the Executive’s cessation of
employment with the Company; provided, however, that there will
be excluded from the scope of such release claims that the
Executive has or may have against the Company for reimbursement
of ordinary and necessary business expenses incurred by him
during his course of employment consistent with this Agreement.
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(h) Internal Revenue Code Limitations.
Notwithstanding anything contained in this Agreement to the
contrary, if the “present value” (as determined under
Section 280G of the Internal Revenue Code of 1986, as
amended (the “Code”), or any successor provision
thereto) of amounts and benefits otherwise payable to the
Executive pursuant to this Agreement, when added to the
“present value” (as determined under Section 280G
of the Code or any successor provision thereto) of any other
“parachute payments” (as that term is defined in
section 280G of the Code or any successor provision thereto)
from the Company, would exceed an amount (the “299%
Amount”) equal to 299% of the Executive’s “base
amount” (as that term is defined in Section 280G of the
Code (without regard to Section 280G(b)(2)(A)(ii) thereof)
or any successor provision thereto), the amounts and benefits
payable under this Agreement will be reduced to the minimum
extent necessary so that the aggregate present value determined
in the previous clause does not exceed the 299% Amount;
provided, however, that the foregoing reduction will be made only
if and to the extent that such reduction would result in an
increase in the aggregate amounts and benefits to be provided,
determined on an after-tax basis (taking into account the excise
tax imposed pursuant to Section 4999 of the Code, or any
successor provision thereto, any tax imposed by any comparable
provision of state law, and any applicable federal, state and
local income taxes). The determination of whether any reduction
in the amounts or benefits payable under this Agreement or
otherwise is required pursuant to the preceding sentence will be
made, if requested by the Executive or the Company, by such tax
counsel as may be selected by the Company’s independent
accountants and reasonably acceptable to the Executive. The fact
that the Executive has his right to payments under this Agreement
reduced as a result of the existence of the limitations
contained in this Section 8(h) will not of itself limit or
otherwise affect any rights of the Executive arising other than
pursuant to this Agreement.
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(i) Certain Definitions. For purposes of this
Agreement, the following terms have the following meanings:
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(i) “Affiliate” means with respect to any
Person, any other Person who directly or indirectly controls, is
controlled by, or is under direct or indirect common control
with, such Person, and includes any Person in like relation to an
Affiliate.
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(ii) “Beneficial Owner” means a
“beneficial owner” as such term is defined in
Rule 13d-3 of the Exchange Act.
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(iii) “Cause” means:
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(1) the willful and continued failure by the Executive
substantially to perform his duties hereunder (other than any
such failure resulting from the Executive’s incapacity due
to physical or mental illness), after written notice requesting
substantial performance is delivered to the Executive by the
Board, which notice identifies in reasonable detail the manner in
which the Board believes the Executive has not substantially
performed his duties;
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(2) an act of fraud, embezzlement or theft in connection
with his duties or in the course of his employment with the
Company; or
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(3) a material breach of Section 9.
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(iv) “Change of Control” of the Company
means the occurrence at any time after the date hereof of
(1) any Person or Group of Persons (other than The Hampstead
Group, L.L.C. or an Affiliate thereof) becoming for the
first time the Beneficial Owner, directly or indirectly, of more
than fifty percent (50%) of the total combined voting power
of all classes of capital stock of the Company normally entitled
to vote for the election of directors of the Company
(“Voting Stock”), other than as a result of a transfer
or series of related transfers of Voting Stock from a Person or
Group of Persons who immediately prior to such transfer or
transfers was the Beneficial Owner, and who after giving effect
to such transfer or transfers continues to be the Beneficial
Owner, of more than fifty percent (50%) of the Voting Stock
of the Company, (2) a merger or consolidation of the Company
with or into another Person (other than The Hampstead
Group, L.L.C. or an Affiliate thereof) or the merger of
another Person (other than The Hampstead Group, L.L.C. or an
Affiliate thereof) into the Company as a consequence of which
those Persons who held all of the Voting Stock of the Company
immediately prior to such merger or consolidation do not hold
either directly or indirectly a majority of the Voting Stock of
the Company (or, if applicable, the surviving company of such
merger or consolidation) after the consummation of such merger or
consolidation, or (3) the consummation of a going private
transaction (of the type described in Rule 13e-3(a)(3) of
the Exchange Act) as a result of which the Company is no longer
required to file (and does not in fact file) periodic reports
pursuant to Section 13 or Section 15(d) of the Exchange
Act.
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(v) “Disability” means the
Executive’s incapacity due to physical or mental illness
substantially to perform his duties on a full-time basis for six
consecutive months and within 30 calendar days after a
notice of termination is thereafter given by the Company the
Executive shall not have returned to the full-time performance of
the Executive’s duties.
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(vi) “Exchange Act” means the Securities
Exchange Act of 1934, as amended.
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(vii) “Group” means a “group” as
such term is used in Rule 13d-3 of the Exchange Act.
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(viii) “Person” means an individual or
entity.
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(ix) “Trial Period” means the period
commencing on the date that Executive’s responsibilities are
substantially reduced hereunder and ending three months
thereafter.
9. Confidentiality and No Hire Agreement.
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(a) Confidentiality. The Executive acknowledges
that, in the course of his employment by the Company, he has
access to and has become aware of and informed of, and will
continue to have access to and become aware of and informed of,
confidential and/or proprietary information which is a
competitive asset of the Company, including without limitation
(i) the terms of any agreements between the Company and
third parties, (ii) marketing strategies and marketing
methods, (iii) development ideas and strategies,
(iv) personnel training and development programs,
(v) financial results, (vi) strategic plans and
demographic analyses, (vii) proprietary computer and systems
software, and (viii) any non-public information concerning
the Company, its employees, suppliers or customers (collectively,
“Confidential Information”). The Executive will keep
all Confidential Information in strict confidence during the Term
and thereafter and will never directly or indirectly make known,
divulge, reveal, furnish, make available or use any Confidential
Information (except in the course of his regular authorized
duties on behalf of the Company). The Executive’s
obligations of confidentiality hereunder will survive termination
of his employment at the Company regardless of any actual or
alleged breach by the Company of this Agreement, until and unless
any such Confidential Information becomes, through no fault of
the Executive, generally known to the public or the Executive is
required by law to make disclosure (after giving the Company
notice and an opportunity to contest such requirement). The
Executive’s obligations under this Section 9 are in
addition to, and not in limitation or preemption of, all other
obligations of confidentiality which the Executive may have to
the Company under general legal or equitable principles.
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(b) No Hire Agreement. For a period of two years
from the Termination Date, the Executive will not directly or
indirectly induce or attempt to induce any employee of the
Company to leave the employment of the Company or to accept any
other employment or position unless (in each case prior to such
inducement or attempted inducement) such employee has been
terminated as an employee of the Company by the Company.
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(c) Specific Performance. The Executive acknowledges
that a violation of any of the provisions of this Section 9
could cause irreparable harm to the Company, and that the
Company’s remedy at law for any such violation could be
inadequate.
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Accordingly, in addition to any other relief afforded by law or
this Agreement, including damages sustained by a breach of this
Agreement, and without any necessity or proof of actual damages,
the Company will have the right to enforce this Agreement by
specific remedies, which will include, among other things,
temporary and permanent injunctions, it being the understanding
of the parties hereto that damages, the forfeitures described
above and injunctions are proper modes of relief and are not to
be considered as alternative remedies.
10. Entire Agreement. This Agreement
supersedes any and all other agreements, either oral or in
writing, between the parties hereto with respect to the subject
matter hereof and contains all of the covenants and agreements
between the parties with respect to such subject matter. Each
party to this Agreement acknowledges that, except as aforesaid,
no representations, inducements, promises or other agreements,
orally or otherwise, have been made by any party, or anyone
acting on behalf of any party, pertaining to the subject matter
hereof, which are not embodied herein, and that no other
agreement, statement, or promise pertaining to the subject matter
hereof that is not contained in this Agreement will be valid or
binding on either party.
11. Withholding of Taxes. The Company may
withhold from any amounts payable under this Agreement all
federal, state or other taxes as the Company is required to
withhold pursuant to any law or government regulation or ruling.
12. Successors and Binding Agreement. This
Agreement will be binding upon and inure to the benefit of and be
enforceable by (i) the Company and any successor to the
Company (including a successor to the Company in a Change of
Control transaction), including without limitation any persons
acquiring directly or indirectly all or substantially all of the
business or assets of the Company whether by purchase, merger,
consolidation, reorganization or otherwise (and such successor
will thereafter be deemed the “Company” for the
purposes of this Agreement), but will not otherwise be
assignable, transferable or delegable by the Company and
(ii) the Executive’s personal or legal representatives,
executors, administrators, successors, heirs, distributees and
legatees. This Agreement is personal in nature and neither of the
parties hereto may, without the consent of the other, assign,
transfer or delegate this Agreement or any rights or obligations
hereunder except as expressly provided herein. Without limiting
the generality or effect of the foregoing, the Executive’s
right to receive payments hereunder will not be assignable,
transferable or delegable, whether by pledge, creation of a
security interest, or otherwise, other than by a transfer by
Executive’s will or by the laws of descent and distribution
and, in the event of any attempted assignment or transfer
contrary to this Section 12, the Company will have no
liability to pay any amount so attempted to be assigned,
transferred or delegated.
13. Notices. For all purposes of this
Agreement, all communications, including without limitation
notices, consents, requests or approvals, required or permitted
to be given hereunder will be in writing and will be deemed to
have been duly given when hand delivered or dispatched by
electronic facsimile transmission (with receipt thereof
confirmed), or five business days after having been mailed by
United States registered or
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certified mail, return receipt requested, postage prepaid, or
three business days after having been sent by a nationally
recognized overnight courier service such as Federal Express or
UPS, addressed to the Company (to the attention of the Chairman
of the Board of the Company) at its principal executive office
and to the Executive at his principal residence, or to such other
address as any party may have furnished to the other in writing
and in accordance herewith, except that notices of changes of
address shall be effective only upon receipt.
14. Governing Law. The validity,
interpretation, construction and performance of this Agreement
will be governed by and construed in accordance with the
substantive laws of the State of Texas, without giving effect to
the principles of conflict of laws of such State.
15. Validity. If any provision of this
Agreement or the application of any provision hereof to any
person or circumstances is held invalid, unenforceable or
otherwise illegal, the remainder of this Agreement and the
application of such provision to any other person or
circumstances will not be affected, and the provision so held to
be invalid, unenforceable or otherwise illegal will be reformed
to the extent (and only to the extent) necessary to make it
enforceable, valid or legal.
16. Survival of Provisions. Notwithstanding
any other provision of this Agreement, the parties’
respective rights and obligations under Sections 8
and 9 will survive any termination or expiration of this
Agreement or the termination of the Executive’s employment
for any reason whatsoever.
17. Miscellaneous. No provision of this
Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing signed
by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto or
compliance with any condition or provision of this Agreement to
be performed by such other party will be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time. Unless otherwise noted, references
to “Sections” are to sections of this Agreement. The
captions used in this Agreement are designed for convenient
reference only and are not to be used for the purpose of
interpreting any provision of this Agreement.
18. Additional Considerations. In connection
with the annual review of the Executive’s base salary, bonus
and other compensation under this Agreement, the Compensation
Committee may consider without limitation the compensation of
executive officers at similarly situated companies performing
comparable functions as the Executive.
19. Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will
constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereof have executed this
Agreement as of the day and year first written above.
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BRISTOL HOTELS & RESORTS
By:
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/s/ J. Xxxxx Xxxxx
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J. Xxxxx Xxxxx,
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Chief Executive Officer
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EXECUTIVE
By:
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