EXH. 10.70
STARWOOD HOTELS & RESORTS WORLDWIDE, INC.
XXXXXX X. XXXXX
NONQUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO THE
2004 LONG-TERM INCENTIVE COMPENSATION PLAN
Starwood Hotels & Resorts Worldwide, Inc., a corporation organized
under the laws of Maryland (the "Company"), has granted to the individual (the
"Optionee") named in the award notification attached hereto as Appendix A (the
"Award Notification") as of the grant date set forth in the Award Notification
(the "Option Date"), pursuant to the provisions of the Starwood Hotels & Resorts
Worldwide, Inc. 2004 Long-Term Incentive Compensation Plan (the "Plan"), a
Nonqualified Stock Option (the "Option") to purchase from the Company that
number of Shares and at the Option Price per Share set forth in the Award
Notification upon and subject to the terms and conditions set forth below and
the terms and conditions set forth in the Plan. References to employment by the
Company shall include employment by of a Subsidiary. Capitalized terms not
defined herein shall have the meanings specified in the Plan.
1. Option Subject to Acceptance of Agreement.
The Option may not be exercised unless the Optionee shall accept
this Agreement by executing the Award Notification in the space provided
therefor and returning the original execution copy of the Award Notification to
the Company.
2. Time and Manner of Exercise of Option.
2.1. Maximum Term of Option. In no event may the Option be
exercised, in whole or in part, after the eighth anniversary of the Option Date
(the "Expiration Date").
2.2. Exercise of Option. (a) The Option shall become exercisable
pursuant to the vesting schedule set forth in the attached Award Notification.
After the Option has become exercisable, subject to termination of the Option
pursuant to the terms of this Agreement or the Plan, the Option may be exercised
in the manner prescribed by Section 2.3 with respect to all or any portion of
the Shares with respect to which the Option has become exercisable but has not
yet been exercised.
(b) If the Optionee's employment by the Company
terminates by reason of Disability or death of the Optionee, the Option shall be
fully exercisable with respect to all of the Shares subject to the Option on the
date of Disability or death and may thereafter be exercised by the Optionee, the
Optionee's Legal Representative or Permitted Transferee, as the case may be,
until the earlier of (i) the third anniversary of the date of Executive's
termination of employment by reason of Disability or death, and (ii) the
Expiration Date. The foregoing notwithstanding, in the case of termination as a
result of Disability, during the one-year period beginning from the date of
Disability, all vested but
unexercised Options held by Optionee will be canceled in the event Optionee
accepts any employment (including, but not limited to, a position that is
substantially comparable to a position the Optionee held with the Company), any
assignment, any position of responsibility, or acquires any ownership interest
(other than holding and making investments in common equity securities of any
corporation, limited partnership or other entity that has its common equity
securities traded in a generally recognized market, provided such equity
interest therein does not exceed 5% of the outstanding shares or equity
interests in such corporation, limited partnership or other entity), which
involves the Optionee's participation in a hotel and leisure company engaged in
the operation of owned hotels, management of hotels, franchising hotels,
development and operation of vacation ownership resorts or the marketing and
selling of vacation ownership interests in each such case in a (i) state within
500 miles of the Optionee's last (or immediately prior) worksite for the
Company, (ii) the country in which the Optionee worked for the Company, (iii) in
any other country in which the Company does any of the enumerated acts, or (iv)
in any other country of the world.
(c) If the Optionee's employment by the Company is terminated by the
Company for Cause, the Option, whether or not then exercisable, shall terminate
automatically on the effective date of the Optionee's termination of employment
or service.
(d) If the Optionee's employment with the Company terminates because
of voluntary resignation by the Optionee without "Good Reason", the Option shall
be exercisable only to the extent it is exercisable on the effective date of the
Optionee's termination of employment and may thereafter be exercised by the
Optionee, the Optionee's Legal Representative or Permitted Transferee until and
including the earlier to occur of (i) the date which is thirty days after the
effective date of the Optionee's termination of employment by voluntary
resignation, and (ii) the Expiration Date.
(e) If the Optionee's employment with the Company terminates because
of Retirement, the Option shall continue to vest as set forth in this Award
Agreement and the Optionee may exercise any vested portion of the Option up
until and including the earlier to occur of (i) the fifth anniversary of the
Optionee's effective date of Retirement, and (ii) the Expiration Date; provided,
however, that any unvested portion of an Option not exercised by the fifth
anniversary of the Optionee's effective date of Retirement shall be canceled.
The foregoing notwithstanding, during the three-year period beginning from the
date of Retirement, all vested but unexercised Options and all unvested Options
held by Optionee will be canceled in the event Optionee accepts any employment
(including, but not limited to, a position that is substantially comparable to a
position the Optionee held with the Company), any assignment, any position of
responsibility, or acquires any ownership interest (other than holding and
making investments in common equity securities of any corporation, limited
partnership or other entity that has its common equity securities traded in a
generally recognized market, provided such equity interest therein does not
exceed 5% of the outstanding shares or equity interests in such corporation,
limited partnership or other entity), which involves the Optionee's
participation in a hotel and leisure company engaged in the operation of owned
hotels, management of hotels, franchising hotels, development and operation of
vacation ownership resorts or the marketing and selling of vacation ownership
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interests in each such case in a (i) state within 500 miles of the Optionee's
last (or immediately prior) worksite for the Company, (ii) the country in which
the Optionee worked for the Company, (iii) in any other country in which the
Company does any of the enumerated acts, or (iv) in any other country of the
world.
(f) If the Optionee's employment with the Company terminates because
of Optionee's resignation for "Good Reason" or by the Company without Cause, the
Option shall be fully exercisable with respect to all of the Shares subject to
the Option on the date of termination of employment and may thereafter be
exercised by the Optionee, the Optionee's Legal Representative or Permitted
Transferee, as the case may be, until the earlier of (i) the third anniversary
of the date of Executive's termination of employment, and (ii) the Expiration
Date.
(g) If the Optionee dies during the thirty-day period following
voluntary resignation by the Optionee, the Option shall be exercisable only to
the extent it is exercisable on the date of death and may thereafter be
exercised by the Optionee's Legal Representative or Permitted Transferee until
and including the earlier to occur of (i) the date which is thirty days after
the date of death and (ii) the Expiration Date. If the Optionee dies during the
five-year period following termination of employment or service by reason of
Retirement, the Option shall be fully exercisable with respect to all of the
Shares subject to the Option on the date of death and may thereafter be
exercised by the Optionee's Legal Representative or Permitted Transferee until
and including the earliest to occur of (i) the date which is one year after the
date of death and (ii) the Expiration Date.
(h) Notwithstanding anything to the contrary contained herein, in
the event that Optionee's employment with the Company terminates at the end of
the employment term by reason of the Company providing a notice of non-renewal
pursuant to Section 2.1 of Optionee's employment agreement with the Company, the
Option shall be fully exercisable with respect to all of the Shares subject to
the Option on the date of termination of employment and may thereafter be
exercised by the Optionee, the Optionee's Legal Representative or Permitted
Transferee, as the case may be, until the earlier of (i) the third anniversary
of the date of Executive's termination of employment, and (ii) the Expiration
Date.
2.3. Method of Exercise and Payment. Subject to the limitations set
forth in this Agreement, the Option may be exercised by the Optionee (1) by
giving oral, written or electronic notice to the Company or its designated
representative specifying the number of whole Shares to be purchased and payment
therefor in full on or prior to the Payment Date (as defined below) either (i)
in cash or its equivalent, (ii) by tendering previously owned whole Shares (or
delivering a certification or attestation of ownership of such Shares) having a
Fair Market Value, determined as of the date of exercise, equal to the aggregate
purchase price for the Shares being purchased pursuant to such exercise (which
the Optionee has held for at least six months prior to the delivery of such
Shares and for which the Optionee has good title, free and clear of all liens
and encumbrances), (iii) in a combination of (i) and (ii), or (iv) by means of a
cashless exercise as permitted under Federal Reserve Board's Regulation T and
using a
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broker-dealer acceptable to the Company and (2) by executing such documents as
the Company may reasonably request. The Committee shall have sole discretion to
disapprove an election pursuant to any of clauses (ii) - (iv). Any fraction of a
Share which would be required to pay such purchase price shall be disregarded
and the remaining amount due shall be paid in cash by the Optionee. No
certificate representing a Share shall be delivered until the full purchase
price therefor has been paid. "Payment Date" shall mean the date on which a sale
transaction in connection with a cashless exercise (whether or not payment is
actually made pursuant to a cashless exercise) would have settled in connection
with the subject option exercise.
2.4 Termination of Option. The Option shall terminate, to the extent
not exercised pursuant to Section 2.3 or earlier terminated pursuant to Section
2.2, at 5:00 p.m. New York time, on the Expiration Date. In no event may the
Option be exercised after it terminates as set forth in this Section 2.4.
3. Additional Terms and Conditions of Option.
3.1 Nontransferability of Option. The Option may not be transferred
by the Optionee other than by will or the laws of descent and distribution or
pursuant to beneficiary designation procedures approved by the Company. Except
to the extent permitted by the foregoing, during the Grantee's lifetime the
Option is exercisable only by the Optionee or the Grantee's Legal
Representative. Except as permitted by the foregoing, the Option may not be
sold, transferred, assigned, pledged, hypothecated, voluntarily encumbered or
otherwise disposed of (whether by operation of law or otherwise) or be subject
to execution, attachment or similar process. Upon any attempt to so sell,
transfer, assign, pledge, hypothecate, voluntarily encumber or otherwise dispose
of the Option, the Option and all rights hereunder shall immediately become null
and void.
3.2. Withholding Taxes. (a) As a condition precedent to the delivery
of Shares upon exercise of the Option, the Optionee shall, upon request by the
Company, pay to the Company in addition to the purchase price of the Shares,
such amount of cash as the Company may be required, under all applicable
federal, state, local or other laws or regulations, to withhold and pay over as
income or other withholding taxes (the "Required Tax Payments") with respect to
such exercise of the Option. If the Optionee shall fail to advance the Required
Tax Payments after request by the Company, the Company may, in its discretion,
deduct any Required Tax Payments from any amount then or thereafter payable by
the Company to the Optionee.
(b) The Optionee may elect to satisfy his or her obligation to
advance the Required Tax Payments by any of the following means: (1) a cash
payment to the Company pursuant to Section 3.2(a), (2) delivery to the Company
of previously owned whole Shares (which the Optionee has held for at least six
months prior to the delivery of such Shares and for which the Optionee has good
title, free and clear of all liens and encumbrances) having a Fair Market Value,
determined as of the date the obligation to withhold or pay taxes first
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arises in connection with the Option (the "Tax Date"), equal to the Required Tax
Payments, (3) by having the Company withhold Shares having a Fair Market Value
as of the Tax Date equal to the Required Tax Payments, (4) a cash payment by a
broker-dealer acceptable to the Company pursuant to a cashless exercise
permitted by Federal Reserve Board's Regulation T or (5) any combination of (1)
- (3). The Committee shall have the sole discretion to disapprove of an election
pursuant to any of clauses (1), (2), (4) or (5). Shares to be delivered to or
withheld by the Company may not have a Fair Market Value in excess of the
minimum amount of the Required Tax Payments. Any fraction of a Share which would
be required to satisfy any such obligation shall be disregarded and the
remaining amount due shall be paid in cash by the Optionee. No certificate
representing a Share shall be delivered until the Required Tax Payments have
been satisfied in full.
3.3 Adjustment. In the event of any stock split, stock dividend,
recapitalization, reorganization, merger, consolidation, combination, exchange
of shares, liquidation, spin-off or other similar change in capitalization or
event, or any distribution to holders of Shares other than a regular cash
dividend, the number and class of securities subject to the Option and the
purchase price per security shall be appropriately adjusted by the Committee;
provided that the number of Shares subject to the Option shall always be a whole
number. The decision of the Committee regarding any such adjustment shall be
final, binding and conclusive.
3.4. Change in Control. In the event of a Change in Control, unless
otherwise prohibited under applicable laws or by the rules and regulations of
any governmental agencies or national securities exchange, the Option shall
become immediately exercisable and shall remain exercisable throughout the
remainder of its term. The Committee shall determine whether a Change in Control
has occurred and such determination shall be conclusive and binding upon the
Company and the Optionee.
3.5. Compliance with Applicable Law. The Option is subject to the
condition that if the listing, registration or qualification of the Shares
subject to the Option upon any securities exchange or under any law, or the
consent or approval of any governmental body, or the taking of any other action
is necessary or desirable as a condition of, or in connection with, the purchase
or delivery of Shares hereunder, the Option may not be exercised, in whole or in
part, unless such listing, registration, qualification, consent or approval
shall have been effected or obtained, free of any conditions not acceptable to
the Company. The Company agrees to use reasonable efforts to effect or obtain
any such listing, registration, qualification, consent or approval. As a further
condition precedent to any exercise of the Option, the Optionee (1) shall comply
with all regulations and requirements of any regulatory authority having control
of or supervision over the issuance or delivery of the Shares, (2) shall comply
with all laws, rules and regulations applicable to the ownership of stock
options and stock and the exercise of stock options, including, without
limitation, currency and exchange laws, rules and regulations and (3) in
connection therewith, shall execute any documents which the Board or the
Committee shall deem necessary or advisable in its sole discretion.
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3.6. Delivery of Certificates. Upon the exercise of the Option, in
whole or in part, and the satisfaction of all requirements of this Agreement
related to such exercise, the Company shall deliver or cause to be delivered one
or more certificates representing the number of Shares purchased against full
payment therefor. The Company shall pay all original issue or transfer taxes and
all fees and expenses incident to such delivery, except as otherwise provided in
Section 3.2.
3.7. Option Confers No Rights as Stockholder. The Optionee shall not
be entitled to any privileges of ownership with respect to Shares subject to the
Option unless and until purchased and delivered upon the exercise of the Option,
in whole or in part, and the Optionee becomes a stockholder of record with
respect to such delivered Shares; and the Optionee shall not be considered a
stockholder of the Company with respect to any such Shares not so purchased and
delivered.
3.8. Option Confers No Rights to Continued Employment; Agreement
Survival. In no event shall the granting of the Option or its acceptance by the
Optionee give or be deemed to give the Optionee any right to employment by the
Company or any affiliate of the Company. The Optionee's terms of employment are
pursuant to the terms of the EMPLOYMENT AGREEMENT, dated as of September 20,
2004, between STARWOOD HOTELS & RESORTS WORLDWIDE, INC. and XXXXXX X. XXXXX.
This Agreement shall survive the termination of the Optionee's employment for
any reason.
3.9. Decisions of Board or Committee. The Board or the Committee
shall have the exclusive right to resolve all questions that may arise in
connection with the Option or its exercise. Any interpretation, determination or
other action made or taken by the Board or the Committee regarding the Plan or
this Agreement shall be final, binding and conclusive.
3.10. Company to Reserve Shares. The Company shall at all times
prior to the expiration or termination of the Option reserve or cause to be
reserved and keep or cause to be kept available, either in its treasury or out
of its authorized but unissued Shares, the full number of Shares subject to the
Option from time to time.
3.11. Prospectus. The Optionee will be provided a copy of the
Prospectus relating to the Plan, the Option and the Shares covered thereby. The
Optionee agrees that he or she has reviewed the Prospectus, and fully
understands his or her rights under the Plan.
3.12. Agreement Subject to the Plan. This Agreement is subject to
the provisions of the Plan and shall be interpreted in accordance therewith. The
Optionee hereby acknowledges receipt of a copy of the Plan.
4. Miscellaneous Provisions.
4.1. Designation as Nonqualified Stock Option. The Option is hereby
designated as not constituting an Incentive Stock Option; this Agreement shall
be interpreted and treated consistently with such designation.
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4.2. Meaning of Certain Terms. As used herein, the term "Legal
Representative" shall include an executor, administrator, beneficiary or person
legally authorized to act on behalf of the Optionee and the term "Permitted
Transferee" shall include any transferee designated pursuant to beneficiary
designation procedures which may be approved by the Company.
4.3. Successors. This Agreement shall (i) be binding upon the
Company and its successors and assigns and (ii) inure to the benefit of any
person or persons who shall, upon the death of the Optionee, acquire any rights
hereunder in accordance with this Agreement or the Plan.
4.4. Notices. All notices, requests or other communications provided
for in this Agreement shall be made, if to the Company, to the Company or its
designated representative at corporate headquarters in White Plains, New York,
Attention: Human Resources, or such other address specified by the Company, and
if to the Optionee, to the address set forth for the Optionee on the records of
the Company. All notices, requests or other communications provided for in this
Agreement shall be made in writing either (a) by personal delivery to the party
entitled thereto, (b) by facsimile with confirmation of receipt, (c) by mailing
in the United States mails to the last known address of the party entitled
thereto or (d) by express courier service. The notice, request or other
communication shall be deemed to be received upon personal delivery, upon
confirmation of receipt of facsimile transmission or upon receipt by the party
entitled thereto if by United States mail or express courier service; provided,
however, that if a notice, request or other communication is not received during
regular business hours, it shall be deemed to be received on the next succeeding
business day of the Company.
4.5. Reform by Court or Severability. In the event that any
provision of this Agreement is deemed by a court to be broader than permitted by
applicable law, then such provision shall be reformed (or otherwise revised or
narrowed) so that it is enforceable to the fullest extent permitted by
applicable law. If any provision of this Agreement shall be declared by a court
to be invalid or unenforceable to any extent, the validity or enforceability of
the remaining provisions of this Agreement shall not be affected.
4.6. Amendment; Waiver. No provision of this Agreement may be
amended or waived unless agreed to in writing and signed by the Executive Vice
President-Human Resources of the Company. The failure to exercise, or any delay
in exercising, any right, power or remedy under this Agreement shall not waive
any right, power or remedy which the Company has under this Agreement.
4.7. Governing Law. The Option and this Agreement, and all
determinations made and actions taken pursuant hereto and thereto, to the extent
not governed by the laws of the United States, shall be governed by the laws of
the State of Maryland and construed in accordance therewith without giving
effect to principles of conflicts of laws.
4.8 Personal Data. By accepting the Award, Participant has
voluntarily consented to the collection, use, processing and transfer of
personal data about Participant,
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including Participant's name, home address and telephone number, date of birth,
social security number or other employee identification number, salary,
nationality, job title, details of the Award for the purpose of managing and
administering the Plan ("Data"). Company and/or its Subsidiaries will transfer
Data amongst themselves as necessary for the purpose of implementation,
administration and management of Participant's participation in the Plan, and
Company and/or any of its Subsidiaries may each further transfer Data to any
third parties assisting Company in the implementation, administration and
management of the Plan.
STARWOOD HOTELS & RESORTS WORLDWIDE, INC.
/s/ Xxxxx Xxxxxx
By: Xxxxx Xxxxxx, Executive Vice President, Human Resources
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