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EXHIBIT 10(h)
CHANGE IN CONTROL AGREEMENT
This Agreement, dated this 14th day of May, 1998, is between Prime
Hospitality Corp., a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxx
("Employee").
R E C I T A L S:
A. Employee is a key officer and employee of the Company.
B. The Board of Directors of the Company (the "Board") recognizes that
Employee is one of several key officer/employees whose high quality of job
performance is essential to promoting and protecting the best interests of the
Company and its shareholders.
C. The Board further recognizes (i) that it is possible that a Change
in Control of the Company could occur at some time in the future, (ii) that the
uncertainty associated with such a possibility could result in the distraction
of Employee from Employee's assigned duties and responsibilities, (iii) that it
is in the best interests of the Company and its shareholders to assure the
continued attention by Employee to such duties and responsibilities without such
distraction and (iv) that Employee must be able to participate in the assessment
and evaluation of any proposal which could effect a Change in Control of the
Company without Employee's judgment being influenced by uncertainties regarding
Employee's future financial security.
D. The Company wishes to provide Employee with certain benefits in the
event of a Change in Control of the Company as set forth herein.
TERMS AND CONDITIONS
For valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. Definitions.
(a) For purposes of this Agreement, the Company shall have
"Cause" to terminate Employee's employment hereunder upon (A) the willful
engaging by Employee in misconduct
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which results in demonstrable and material economic injury to the Company, or
(B) the conviction of Employee of a felony involving moral turpitude. For
purposes of this paragraph, no act, or failure to act, on Employee's part shall
be considered "willful" unless done, or omitted to be done, by him not in good
faith and without reasonable belief that his action or omission was in or not
opposed to the best interests of the Company. Employee shall not be deemed to
have been terminated for Cause unless the Company shall have given or delivered
to Employee (i) reasonable notice setting forth the reasons for the Company's
intention to terminate for Cause, (ii) an opportunity for Employee to cure any
such breach within thirty (30) days after receipt of such notice, (iii) an
opportunity for Employee, together with his counsel, to be heard before the
Board, and (iv) a written notice of termination stating that, in the good faith
opinion of not less than a majority of the entire membership of the Board,
Employee was guilty of conduct set forth above in clauses (A) or (B) of the
second preceding sentence, and specifying the particulars thereof in detail.
Notwithstanding the foregoing, in the case of any Employee who has in effect an
employment agreement with the Company ("Employment Agreement"), no termination
following a Change in Control shall be treated as for Cause (x) for purposes of
this Agreement unless it would also be treated as for Cause under such
Employment Agreement, or (y) for purposes of such Employment Agreement unless it
would also be treated as for Cause under this Agreement.
(b) A "Change in Control" of the Company shall be considered
to occur if and when:
(i) more than 30% of the Company's outstanding
securities entitled to vote in elections of directors (the
"Voting Securities") are acquired by any person, entity or
group (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934) (other than the Company,
any corporation, partnership, trust or other entity controlled
by the Company (a "Subsidiary") or any trustee, fiduciary or
other person or entity holding securities under any employee
benefit plan or trust of the Company or any of its
Subsidiaries) (such person, entity or group, a "Person");
provided, however that, notwithstanding the prior clause of
this Section 1(b)(i), unless
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the Board, within thirty (30) days of such event, determines
otherwise, a Change in Control shall be considered to occur if
and when more than 20% of the Voting Securities are acquired
by any Person; or
(ii) during any period of two consecutive years, the
individuals who, at the beginning of such period, constitute
the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority thereof, provided, however,
that a director who is not otherwise a member of the Incumbent
Board shall be deemed to be a member of the Incumbent Board if
such director was elected by, on the recommendation of, or
with the approval of, at least two-thirds of the Incumbent
Board (taking into account the proviso in this Section
1(b)(ii);
(iii) the sale, lease, exchange or other disposition
in one transaction or in a series of related transactions of
all or substantially all of the assets of the Company, other
than a sale, lease, exchange or other disposition to an
entity, following which (A) more than 50%, respectively, of
the then outstanding shares of common stock or other
securities, (measured by value) of such entity and the
combined voting power of the then outstanding voting
securities of such entity entitled to vote generally in the
election of directors (collectively, "Equity Securities") is
then beneficially owned, directly or indirectly, by
individuals and entities who were the beneficial owners of the
outstanding Voting Securities immediately prior to such sale,
lease, exchange or other disposition, in substantially the
same proportions among such beneficial owners, (B) no Person
(excluding any Person beneficially owning, immediately prior
to such sale, lease, exchange or other disposition, directly
or indirectly, 30% or more of the outstanding Voting
Securities), beneficially owns, directly or indirectly, 30% or
more, respectively, of the then outstanding Equity Securities,
and (C) at least a majority of the members of the board of
directors of the entity were members of the Incumbent Board at
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the time of the execution of the initial agreement or action
of the Board providing for such sale, lease, exchange or other
disposition of assets of the Company;
(iv) approval by the Company's shareholders of a
reorganization, merger or consolidation of the Company,
unless, following such reorganization, merger or
consolidation, (A) more than 50%, respectively, of the then
outstanding Equity Securities of the entity resulting from
such reorganization, merger or consolidation is then
beneficially owned, directly or indirectly, by individuals and
entities who were the beneficial owners, respectively, of the
outstanding Voting Securities immediately prior to such
reorganization, merger or consolidation, in substantially the
same proportions among such beneficial owners, (B) no Person
(excluding any Person beneficially owning, immediately prior
to such reorganization, merger or consolidation, directly or
indirectly, 30% or more of the outstanding Voting Securities),
beneficially owns, directly or indirectly, 30% or more of the
outstanding Voting Securities), beneficially owns, directly or
indirectly, 30% or more, respectively, of the then outstanding
Equity Securities of the entity resulting from such
reorganization, merger or consolidation, and (C) at least a
majority of the members of the board of directors of the
entity resulting from such reorganization, merger or
consolidation were members of the Incumbent Board at the time
of the execution of the initial agreement providing for such
reorganization, merger or consolidation;
(v) approval by the Company's shareholders of a
complete liquidation or dissolution of the Company; or
(vi) such other events as the Board may designate.
(c) "Good Reason" shall mean the occurrence of any of the
following, without Employee's consent, after a Change in Control:
(i) a material reduction or adverse alteration in the
titles, duties,
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authorities or responsibilities of Employee's position;
(ii) a reduction in Employee's annual base salary,
bonus or other compensation arrangements provided by the
Company;
(iii) the relocation of Employee's place of
employment by more than twenty miles; or
(iv) a material reduction in or the discontinuance of
the perquisites or benefits provided by the Company to
Employee.
In addition, and without limiting the foregoing, in the case of an
Employee with an Employment Agreement "Good Reason" shall include any
act or failure to act which would constitute "good reason" as such term
is defined in the Employee's Employment Agreement.
(d) The term "Cash Compensation" shall mean, during any fiscal
year of the Company, Employee's aggregate cash compensation earned as an
Employee of the Company during the immediately preceding fiscal year (including
any bonus earned but not paid by fiscal year-end and without regard to any
election deferring the receipt of compensation so earned). If Employee was
employed by the Company for only a portion of the preceding fiscal year, "Cash
Compensation" shall mean his annualized aggregate cash compensation for such
year, which shall be determined based on the aggregate cash compensation earned
during the portion of such year that Employee was employed.
2. Change in Control.
(a) Options. In the event of a Change in Control of the
Company, all stock options granted to Employee by the Company under any
compensatory plan or arrangement shall become immediately vested and
exercisable, notwithstanding any vesting schedule previously applicable to such
stock options.
(b) Cash Payment. If, within twenty-four (24) months following
a Change in Control of the Company, the Company terminates Employee's employment
without Cause, or Employee terminates his or her employment with the Company for
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Good Reason, then the Company shall, within ten (10) days of such termination of
employment, pay to Employee, in one lump sum, in immediately available funds by
wire transfer in accordance with Employee's instructions, an amount equal to two
and one-half (2-1/2) times Employee's "Cash Compensation" as defined above.
3. Excise Tax Gross-Up.
(a) Anything in this Agreement to the contrary
notwithstanding, if it shall be determined that any payment or distribution by
the Company to or for Employee's benefit (whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement or pursuant to an
Employment Agreement or any other compensatory Company plan or arrangement,
without taking into account the Gross-Up Payment, as hereinafter defined) (a
"Payment") would be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), or any interest or
penalties are incurred by Employee with respect to such excise tax (such excise
tax, together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then Employee shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after payment
by Employee of all Federal, state and local taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any income taxes, withholding taxes and payroll taxes (and any interest and
penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up
Payment, Employee retains an amount of the Gross-Up Payment equal to the Excise
Tax imposed upon the Payments.
All determinations required to be made under this Section 11,
including whether and when a Gross-Up Payment is required and the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by a nationally recognized accounting firm as may
be designated by Employee (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and Employee within fifteen (15)
business days of
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the receipt of notice from Employee that there has been a Payment, or such
earlier time as is requested by the Company. In the event that the Accounting
Firm is serving as accountant or auditor for the individual, entity or group
effecting the Change in Control, Employee shall appoint another nationally
recognized accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder). All
fees and expenses of the Accounting Firm shall be borne by the Company. Any
Gross-Up Payment, as determined pursuant to this Section 11, shall be paid by
the Company to Employee within five days of the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm shall be binding upon
the Company and Employee. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made ("Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Company exhausts its remedies pursuant to Section 3(b) and Employee thereafter
is required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for Employee's benefit.
(b) Employee shall notify the Company in writing of any claim
by the Internal Revenue Service that, if successful, would require the payment
by the Company of the Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than fifteen business days after Employee is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid. Employee
shall not pay such claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Company notifies
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Employee in writing prior to the expiration of such period that it desires to
contest such claim, Employee shall:
(i) give the Company any information reasonably
requested by the Company to such claim,
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in writing
from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney
reasonably selected by the Company,
(iii) cooperate with the Company in good faith in
order effectively to contest such claim, and
(iv) permit the Company to participate in any
proceeding relating to such claim,
provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and hold
Employee harmless, on an after-tax basis, from any Excise Tax or income
tax (including interest and penalties with respect thereto) imposed as
a result of such representation and payment of costs and expense.
Without limitation on the foregoing provisions of this Section 3, the
Company shall control all proceedings taken in connection with such
contest and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option,
either direct Employee to pay the tax claimed and xxx for a refund or
contest the claim in any permissible manner, and Employee agrees to
prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however,
that if the Company directs Employee to pay such claim and xxx for a
refund, the Company shall advance the amount of such payment to
Employee, on an interest-free basis, and shall indemnify and hold
Employee harmless, on an after-tax
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basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or
with respect to any imputed income with respect to such advance; and
further provided that any extension of the statute of limitations
relating to payment of taxes for Employee's taxable year with respect
to which such contested amount is claimed to be due is limited solely
to such contested amount. Furthermore, the Company's control of the
contest shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and Employee shall be entitled to
settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(c) If, after Employee's receipt of an amount advanced by the
Company pursuant to Section 3(b), Employee becomes entitled to receive any
refund with respect to such claim, Employee shall (subject to the Company's
complying with the requirements of this Section 3(b)) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after Employee's receipt of an
amount advanced by the Company pursuant to Section 3(b), a determination is made
that Employee shall not be entitled to any refund with respect to such claim and
the Company does not notify Employee in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
4. Waiver of Invalidity. Inasmuch as the injury caused to Employee in
the event Employee's employment is terminated within twenty-four (24) months of
a Change in Control is difficult or incapable of accurate estimation at the date
of this Agreement, the amounts to be paid pursuant to Sections 2 and 3 are
intended to be liquidated damages and not a penalty, and therefore constitute a
good faith forecast of the harm which might be expected to be caused to
Employee. Accordingly, the Company waives any right to assert against Employee
the invalidity of any payment provided in Sections 2 and 3 by reason of
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Employee's failure to seek other employment or otherwise, nor shall the amount
of any payment provided in Sections 2 and 3 be reduced by reason of any
compensation earned or not earned by Employee as a result of employment by
another employer after the date of termination or otherwise.
5. Arbitration of Disputes. All disputes governing the interpretation
or enforcement of this Agreement shall be resolved exclusively by arbitration in
the manner set forth in this Section 5. Employee or the Company may submit to
arbitration any claim under this Agreement as follows: At any time following the
termination of Employee's employment with the Company, the claim may be filed in
writing with an arbitrator of Employee's choice or, if the claim is filed by the
Company, reasonably acceptable to Employee, and thereafter the Company, or
Employee, as applicable, shall be notified in writing of the claim and furnished
with a true copy as so filed. The arbitrator must be a member of the National
Academy of Arbitrators or one who currently appears on arbitration panels issued
by the American Arbitration Association. To the extent not inconsistent with the
rules set forth in this Section 5, the arbitration proceeding shall insofar as
practicable be conducted in accordance with the National Rules of the American
Arbitration Association for the Resolution of Employment Disputes effective June
1, 1996. The arbitration hearing shall be held within ten (10) business days
after the receipt of notice of the claim by the Company. No continuance of the
hearing shall be allowed without the mutual consent of Employee and the Company.
Absence from or non-participation at the hearing by either party shall not
prevent the issuance of an award. Hearing procedures which will expedite the
hearing may be ordered at the arbitrator's discretion. The arbitrator's award
shall be rendered as expeditiously as possible. In the event the arbitrator
finds that the Company has breached this Agreement, the arbitrator shall order
the Company to pay to Employee, within twenty-four hours after the decision is
rendered, the amount due hereunder. The award of the arbitrator shall be final
and binding upon the parties. Judgment may be entered on the arbitrator's award
in any appropriate court as soon as possible after its rendition without further
notice to the Company. The Company shall promptly reimburse Employee for the
reasonable legal
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fees and expenses incurred by Employee in connection with enforcement of
Employee's rights hereunder or the determination of Employee's rights in any
arbitration proceeding.
6. Miscellaneous.
(a) Waiver. The failure of any party to exercise any rights
hereunder or to enforce any of the terms or conditions of this Agreement on any
occasion shall not constitute or be deemed a waiver of that party's rights
thereafter to exercise any rights hereunder or to enforce each and every term
and condition of this Agreement.
(b) Binding Effect; Successors.
(i) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or
assets of the Company, by agreement, in form and substance
satisfactory to Employee, expressly to assume and agree to
perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no
such succession had taken place. Failure of the Company to
obtain such assumption and agreement prior to the
effectiveness of any such succession will entitle Employee to
compensation from the Company in the same amount and on the
same terms as Employee would be entitled to under Section 2(b)
hereunder had the Company terminated Employee without Cause on
the succession date (assuming a Change in Control of the
Company had occurred prior to such succession date). As used
in this Agreement, "the Company" means Employer as defined in
the preamble to this Agreement and any successor to its
business or assets which executes and delivers the agreement
provided for in this Section 6(b) or which otherwise becomes
bound by all the terms and provisions of this Agreement by
operation of law or otherwise.
(ii) This Agreement and all rights of the Employee
hereunder shall inure to the benefit of and be enforceable by
Employee and Employee's personal or legal representatives,
executors, administrators, successors, heirs, distributees,
devisees and legatees. If Employee should die while any
amounts would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise
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provided herein, shall be paid in accordance with the terms of
this Agreement to Employee's devisee, legatee, or other
beneficiary or, if there be no such beneficiary, to Employee's
estate.
(c) Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of Delaware.
(d) Authorization and Modification. This Agreement is executed
for and on behalf of the Company by an officer thereof duly authorized to do so
by resolution of the Board of Directors approving this Agreement and authorizing
such execution. This Agreement shall not be varied, altered, modified, changed
or in any way amended except by an instruction in writing executed by the
parties hereto.
(e) Assignment by Employee. Except as otherwise expressly
provided for in this Agreement, no right, benefit or interest of Employee
arising hereunder shall be subject to anticipation, alienation, sale,
assignment, encumbrance, charge, pledge, hypothecation or set-off in respect of
any claim, debt or obligation or to execution, attachment, levy or similar
process, or assignment by operation of law. Any attempt, voluntary or
involuntary, to effect any action specified in the immediately preceding
sentence shall, to the full extent permitted by law, be null, void and of no
effect.
(f) Notice. For the purposes of this Agreement, notices,
demands and all other communications provided for in the Agreement shall be in
writing and shall be deemed to have been given when hand delivered or (unless
otherwise specified) mailed by United States registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Employee: Xxxx X. Xxxxxxx
00 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxx Xxxxxx 00000
If to the Company: Prime Hospitality Corp.
000 Xxxxx 00 Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
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or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(g) Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement, which shall remain in
full force and effect.
(h) Taxes. The Company shall deduct from all amounts payable
under this Agreement all federal, state, local and other taxes required by law
to be withheld with respect to such payments.
7. Other Arrangements. The rights of Employee under this Agreement are
in addition to Employee's rights under any Employment Agreement or any successor
agreement to an Employment Agreement covering Employee. Nothing contained in
this Agreement shall adversely affect any of Employee's rights under an
Employment Agreement or as a participant or beneficiary under the Company's
pension and welfare benefit plans, incentive compensation arrangements and
perquisite programs, or Employee's obligations arising under any
confidentiality, non-competition or no solicitation agreement with the Company.
This Agreement supersedes any and all prior Change in Control Agreements entered
into between Employee and the Company.
PRIME HOSPITALITY CORP.
By:_______________________________
EMPLOYEE:
__________________________________
Xxxx X. Xxxxxxx
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