Exhibit 10.33
EMPLOYEE STOCK GRANT CONTRACT
UNDER THE
FELCOR LODGING TRUST INCORPORATED
[AMENDED AND RESTATED]
RESTRICTED STOCK AND STOCK OPTION PLAN
This Contract is made and entered into on , , but effective as of the day
of , between FelCor Lodging Trust Incorporated, a Maryland corporation (the
"Company"), and (the "Grantee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Compensation Committee and Board of Directors of the Company
has adopted the FelCor Lodging Trust Incorporated ______ Restricted Stock and
Stock Option Plan (the "Plan"); and
WHEREAS, the stockholders of the Company have approved the Plan; and
WHEREAS, pursuant to the Plan, the Compensation Committee of the Board of
Directors of the Company (the "Committee") has selected the Grantee and has
authorized the Company to grant to the Grantee shares of common stock of the
Company ("Common Stock") on the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1) Incorporation of the Plan. A copy of the Plan, as amended, is attached
hereto and hereby incorporated herein by reference, and all of the terms,
conditions and provisions contained therein shall be deemed to be terms,
conditions and provisions of this Contract. All terms used herein that are
defined in the Plan shall have the meanings given them in the Plan.
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2) Grant of Restricted Stock. Pursuant to the authorization of the
Committee, and subject to the terms, conditions and provisions contained in the
Plan and this Contract, the Company hereby grants to the Grantee, as a matter of
separate inducement and agreement in connection with his employment, but not in
lieu of any salary or other compensation for his services, an aggregate of ( )
shares of Common Stock of the Company (the "Restricted Stock"). The Restricted
Stock shall be deemed to have been granted, and the Date of Grant of the
Restricted Stock shall be, .
3) Period of Restriction; Vesting. The Restricted Stock granted pursuant
hereto shall be issued and registered in the name of the Grantee and the Grantee
shall be entitled to vote the same (in person or by proxy) and to receive all
dividends and other distributions thereon unless and until such Restricted Stock
is forfeited as hereinafter provided. During the period prior to the date the
Restricted Stock granted pursuant hereto becomes vested in the Grantee (the
"Restricted Period"), the Company shall hold the certificate(s) evidencing such
unvested Restricted Stock, together with stock powers or other instruments of
transfer appropriately endorsed in blank by the Grantee (and the Grantee hereby
agrees to execute and deliver such stock powers or other instruments of transfer
as requested by the Company), as custodian for the Grantee. At such time, and
from time to time, as shares of Restricted Stock become vested in the Grantee
and all obligations of the Grantee hereunder and under the Plan with respect
thereto shall have been fulfilled, the restrictions set forth in Section 4
hereof and all forfeiture provisions set forth herein or in the Plan shall cease
to be applicable to such Restricted Stock and the certificate(s) therefor shall
be delivered by the Company to the Grantee.
The Restricted Stock granted pursuant hereto, until the same becomes vested
as herein provided, shall be subject to certain restrictions and to forfeiture
upon the occurrence of certain events, all as set forth in Section 4 hereof. The
Restricted Stock granted hereby shall become vested in the Grantee, as follows:
(a) Time-Based Criteria. The Restricted Stock granted hereby shall vest on
the fourth anniversary of the Date of Grant, subject to the Grantee remaining as
an employee of the Company in good standing on that anniversary. One-half of the
shares of Restricted Stock granted hereby shall be subject only to these
time-based criteria without regard to any performance-based criteria.
(b) Performance-Based Criteria. The remaining one-half of the number of
shares of the Restricted Stock are eligible for accelerated vesting on each
anniversary of the Date of Grant (each, a "Vesting Date"), as set forth below,
based upon the satisfaction of the performance-based criteria established by the
Committee in advance of and for each such Vesting Date.
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Number of Shares
Eligible to Become Vesting
Vested Date
------------------ -------
Attached hereto, as an addendum, is a statement of the performance-based
criteria adopted by the Committee that will be applicable to the first Vesting
Date. At least twelve months prior to each subsequent Vesting Date, the
Committee, in the exercise of its sole discretion, shall adopt a statement of
the performance-based criteria that will be applicable to that Vesting Date, a
copy of which statement will be furnished to each party hereto and, upon
delivery, shall become a part of this contract. In setting performance-based
criteria for any Vesting Date subsequent to the first Vesting Date, the
Committee shall have the unrestricted right to vary any or all components of, to
add or delete components of, or otherwise modify the performance-based criteria
in its sole discretion.
Within the three-month period immediately preceding each Vesting Date, the
Committee will compare the performance-based criteria applicable to that Vesting
Date against the achieved results and determine the number of shares eligible to
become vested on that Vesting Date that will become so vested as of that date.
The determination of the Committee as to the number of shares to vest at each
such Vesting Date shall be conclusive upon all parties hereto and shall be
communicated to the Grantee on or prior to such Vesting Date.
(c) Cliff Vesting for Performance Based Shares. Any shares of the
Restricted Stock that fail to vest as the result of the failure to satisfy the
performance criteria pursuant to subsection (b) above may still vest if, at the
end of the four-year vesting period, the Company can satisfy separate
performance criteria established by the Compensation Committee. Attached hereto,
as an addendum, is a statement of the performance-based criteria adopted by the
Committee that will be applicable to any shares of Restricted Stock that fail to
vest on the first Vesting Date. At least twelve months prior to each subsequent
Vesting Date, the Committee, in the exercise of its sole discretion, shall adopt
a statement of the alternative performance-based criteria that will be
applicable to any shares that fail to vest on that Vesting Date, a copy of which
statement will be furnished to each party hereto and, upon delivery, shall
become a part of this contract. In setting alternative performance-based
criteria for shares that fail to vest on any Vesting Date subsequent to the
first Vesting Date, the Committee shall have the unrestricted right to vary any
or all components of, to add or delete components of, or otherwise modify the
performance-based criteria in its sole discretion. If the Company achieves the
alternative performance-based criteria at the end of the four-year vesting
period, any shares of Restricted Stock that had not vested as a result of the
failure to satisfy any performance-based criteria for the corresponding Vesting
Date, will vest on the fourth anniversary of the Date of Grant. If the Company
fails to achieve this objective, then those unvested shares will be forfeited on
the fourth anniversary of the Date of Grant.
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4) Restrictions. During the Restricted Period applicable to any Restricted
Stock granted hereunder:
(a) The Grantee shall not become vested as to any such Restricted Stock if,
(i) after taking into account for calculation purposes all of such Grantee's
"applicable employee remuneration" other than under the Plan, the vesting of
such Restricted Stock would cause the Grantee's "applicable employee
remuneration" to exceed $1,000,000 for such taxable year or (ii) the vesting
thereof would violate Federal or state securities laws;
(b) The Restricted Stock and the right to vote the same and to receive
dividends thereon may not, except as otherwise provided in the Plan, be sold,
assigned, transferred, exchanged, pledged, hypothecated, or otherwise
encumbered, and no such sale, assignment, transfer, exchange, pledge,
hypothecation, or encumbrance, whether made or created by voluntary act of the
Grantee or by operation of law, shall be recognized by, or be binding upon, or
shall in any manner affect the rights of the Company pursuant hereto or the
Plan; provided, however, that Grantee may at any time transfer the Restricted
Stock to the FelCor Lodging Trust Incorporated 2005 Non-Qualified Deferred
Compensation Plan, subject to all of the terms and restrictions set forth
herein.
(c) If the status of the Grantee as an Employee under the Plan shall
terminate for any reason other than (i) the death of the Grantee, (ii) the
Disability (as defined in the Plan) of the Grantee, or (iii) the retirement of
the Grantee at or after the age of sixty (60), then, in that event, any
Restricted Shares outstanding shall, upon such termination, be forfeited by the
Grantee to the Company, without the payment of any consideration by the Company,
and neither the Grantee nor any of his or her successors, heirs, assigns, or
legal representatives shall thereafter have any further rights or interest in
the Restricted Stock so forfeited or any certificates evidencing the same, and
the Company shall, at any time thereafter, be entitled to effect the transfer of
any Restricted Stock so forfeited into the name of the Company;
(d) If the status of the Grantee as an Employee under the Plan shall
terminate by reason of the death of the Grantee, the Disability of the Grantee
or the retirement of the Grantee at or after the age of sixty (60), the
Restricted Period (and all restrictions set forth in this Section 4) with
respect to all Restricted Stock granted hereby shall be deemed to have expired
as of the date of such event;
(e) If the Company (i) is not to be the surviving entity in any merger or
consolidation (or survives only as a subsidiary of another entity), (ii) sells
all or substantially all of its assets to any other person or entity (other than
a subsidiary of the Company) or (iii) is to be dissolved and liquidated, the
Restricted Period (and all restrictions set forth in this Section 4) with
respect to all Restricted Stock granted hereby shall be deemed to have expired
as of the date of next preceding such event;
(f) Any shares of Restricted Stock eligible to become vested that do not
become so vested in accordance with Section 3(c) above shall be forfeited as of
the fourth anniversary of the Date of Grant and returned to the status of
authorized but unissued shares under the Plan; and
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(g) If a dispute should arise between the Company and the Grantee relating
to the rights, duties or obligations of the Grantee hereunder or under the Plan
with respect to any Restricted Stock granted hereby, such dispute shall be
resolved by the determination of the Committee, acting in good faith, which
determination shall be final and binding upon the Company and the Grantee, and
pending such a determination and the resolution of all such disputes to the
reasonable satisfaction of the Committee, (i) all Restricted Stock then held by
the Company as custodian for the Grantee shall remain in the possession of the
Company and subject to all of the Restrictions set forth in this Section 4,
regardless of any intervening expiration of the Restricted Period, and (ii) any
and all dividends payable upon any Restricted Stock so held by the Company as
custodian for the Grantee shall be received and held by the Company as custodian
until all such disputes have been resolved to the reasonable satisfaction of the
Committee, at which time the accumulated dividends then held by the Company
shall be delivered (without interest thereon) to the person entitled to receive
the Restricted Stock upon which such dividends were originally paid.
5) Restrictions on Resale of Company Common Stock. In the event that shares
of Restricted Stock granted hereunder have not been registered under the
Securities Act of 1933, as amended, and applicable state securities laws, such
shares of Restricted Stock may not be sold, transferred or assigned by the
Grantee absent such registration, unless an opinion of counsel satisfactory to
the Company shall have been received by the Company to the effect that such
sale, transfer or assignment will not be in violation of the Securities Act of
1933, as amended, and the rules and regulations thereunder, or applicable state
securities laws. Any certificate issued to the Grantee to evidence Restricted
Stock granted pursuant hereto that is not so registered may bear a legend to the
foregoing effect.
6) Notices. All notices, surrenders and other communications required or
allowed to be made or given in connection with the Restricted Stock granted
hereunder shall be in writing, shall be effective when received and shall be
hand delivered or sent by registered or certified mail (i) if to the Company, to
FelCor Lodging Trust Incorporated, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; or (ii) if to the Grantee, to
the Grantee at the address set forth beneath his signature hereto, or to such
other address as to which he may have notified the Company pursuant to this
Section.
7) Binding Effect. This Contract shall bind and, except as specifically
provided in the Plan and this Contract, shall inure to the benefit of, the
respective Successors, heirs, legal representatives and assigns of the parties
hereto.
8) Governing Law. This Contract and the rights of all persons claiming
hereunder shall be construed and determined in accordance with the laws of the
State of Maryland.
IN WITNESS WHEREOF, the Company has caused this Contract to be executed
by its duly authorized officer and the Grantee has hereunto set his hand, as of
the day and year first written above.
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COMPANY:
FELCOR LODGING TRUST INCORPORATED
By:_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
President and CEO
GRANTEE:
Name:
Address:
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ADDENDUM TO EMPLOYEE STOCK GRANT CONTRACT DATED __________, 200_,
BETWEEN FELCOR LODGING TRUST INCORPORATED AND GRANTEE, APPLICABLE
TO THE VESTING DATE
OF [___________]
[This addendum shall set forth a statement of the performance-based
criteria adopted by the Compensation Committee that will be applicable to the
initial Vesting Date, and a separate statement of the performance-based criteria
adopted by the Compensation Committee that will be applicable to the cliff
vesting on any previously unvested shares on the final Vesting Date.]
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